Cases by Issue - Adversary Parties

Utah v. Evans - Oral Argument

Fri, 09 Jan 2009 14:50:23 +0000

Case:

Utah v. Evans

Media File:

01-714_20020327-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF THOMAS R. LEE, ESQ. ON BEHALF OF THE APPELLANTS

Chief Justice Rehnquist: We'll hear argument now in number 01-714, Utah vs. Donald L. Evans, Secretary of Commerce.

Mr. Lee.

Mr. Lee: Mr. Chief Justice and may it please the Court: for most of the history of the census of the American population, that census has been conducted by means of an actual count unaltered by any methods of statistical estimation.

At the time of the first census of 1790, James Madison noted that this was the way required by the Constitution and ever since then, that requirement has been implemented by Congress in the Census Act.

The question presented in this case is whether the Census Bureau acted unlawfully in departing from that longstanding historical tradition by using the method of estimation called hot-deck imputation in the 2000 apportionment count.

99.6 percent of the 2000 apportionment count was comprised of actual data compiled by census enumerators in two phases.

First, a mailing sent to all addresses on a master address file, and second, as many as six follow-up visits.

Imputation added an additional.4 percent to that count, 1.2 million statistically generated persons were added to the apportionment count by means of a statistical estimate.

The basic essence of the estimate was to say the 620,000 addresses that the Census Bureau was unable to enumerate are assumed to have estimated to have the same number of occupants as their next door neighbors.

Mr. Dellinger: Mr. Lee, I would like to ask you to address early on whether this injury that Utah alleges to have suffered is redressable in any fashion.

Things have happened since the census was taken.

North Carolina presumably has drawn districts and has gone quite far down the road in reliance on the census.

The President has turned over the numbers and so forth.

How can this be redressed, do you think, now?

Mr. Lee: I suppose, Justice O'Connor, that there are two aspects of your question if I'm understanding it.

One of them would be a redressability standing question.

That's a question as the Solicitor General notes that has already been decided by this Court both in Franklin and in Montana with regard to--

Mr. Dellinger: Well, there is jurisdiction, but I don't know that we have really addressed the redressability issue fully in prior cases.

When could Utah have made its challenge?

When is the earliest time Utah could have challenged this imputation business?

Mr. Lee: --It would have been impossible, Justice O'Connor, for Utah to have brought a challenge prior to the census.

As North Carolina indicated--

Mr. Dellinger: Well, why is that?

I mean, you knew, did you, that the Census Bureau planned to use it?

Mr. Lee: --Yes.

We certainly had constructive knowledge.

Mr. Dellinger: But you wouldn't have had an injury.

Mr. Lee: We wouldn't have had an injury, and in fact as the Census Bureau itself indicates, there would have been no way even to have anticipated that imputation would have had this effect.

Mr. Dellinger: Well, you have no incentive to bring a challenge until you know that you are losing a congressional seat, I suppose.

Mr. Lee: That's exactly right.

And that was one of the problems.

It took us some time to get the numbers from the Census Bureau, specific state by state numbers, in order to be able to determine whether in fact this was a method that impacted Utah, and as soon as we got those numbers, we brought this suit within a few days.

Mr. Dellinger: Well, was there a window of time between completion of the census and the submission of the numbers to the President where you could have sued?

How long was that period of time?

Mr. Lee: That was, the time line is that the Secretary must submit the numbers by the end of the calendar year to the President, and then the President must submit those numbers within seven days after the first day of the Congress.

The problem, Justice Kennedy, was that we didn't have those numbers at that time.

The Census Bureau had not released again state by state imputation numbers until well into March of 2001, and it was within a few days after that that we brought this suit.

Mr. Dellinger: Well, if you prevail, what's supposed to happen?

Mr. Lee: The remedy that we are asking for, Justice Kennedy, is simply a declaration and an injunction to the Secretary of Commerce directing the Secretary to issue a new apportionment count free of the statistical estimates that we believe are unlawful under the Census Act and under the Census Clause of the Constitution.

Mr. Dellinger: Well, what's supposed to happen under the Act?

I mean, I went back and read the Act last night.

And that's geared to certain automatic apportionment, and that in turn is geared to the delivery of the numbers by the date specified.

So let's assume the Secretary and then the President comes with different numbers.

The Act doesn't have any provision in effect for self-adjustment, does it?

Mr. Lee: And I think, Justice Souter, that's effectively North Carolina's argument.

That there are time deadlines set forth in the Census Act that somehow stand in the way of reviewability here.

That is an argument that was raised and rejected in Franklin.

The Franklin opinions, Justice O'Connor's opinion for a four justice plurality on that point, says that if this Court agrees with the Plaintiffs in this case, we may presume that the President of the United States will conform to our decision and will in fact issue a new apportionment count that is consistent with the law as we clarify it.

By the same token--

Mr. Dellinger: I will presume that, too, but that was four justices, and there wasn't a specific discussion of what is supposed to happen under the statute, even assuming the President sort of takes counsel from our opinion.

Mr. Lee: --And the other opinion in that case, Justice Souter, that also addresses this issue was Justice Stevens' concurring opinion, for a separate four-justice concurrence on this issue, and his analysis was in fact that the statute would require the President to conform to a revised count that the Secretary might present in conformity to a decision of this Court.

Mr. Dellinger: Well, that's what he said and as you know, I joined his opinion.

But that didn't have a majority, either.

So isn't it incumbent upon you to tell us whether in fact the position that some of us took that first time is in fact correct?

Why will they, I mean, it seemed so to me at the time but it's a real issue in this case, as to whether the statute which is geared to delivery of information at certain times can in effect reverse itself.

Mr. Lee: The other point that Justice Stevens made in his concurring opinion, Justice Souter, which I think is critical on this issue, is that the time lines under the statute can be understood only to trigger, only with regard to the issue of ripeness.

In other words, it makes no sense to think that a time deadline for executive action under a statute means that you, you must... it makes no sense to think that those deadlines are a bar to judicial review.

In fact, what we usually think of when we look at a statute that has deadlines is that once those deadlines have passed, then executive action is at an end, there is a ripe claim that may be brought and then it's appropriate for the federal courts to step in.

Mr. Dellinger: But those are not cases where after, after the deadline provisions, you have a, a basic change in, in the court's role, that after the deadline in this case, you are going to have to, the court is going to have to issue an opinion that purports to bind the President.

Which is, you know, a significant step.

Mr. Lee: Yes.

I think that the opinion does not need to purport to bind the President, and as the Court indicated in Franklin, there is no need for the order to go to that point.

Mr. Dellinger: Well, but I mean that's, that's even worse.

You want us to decide something on the ground that some good may come out of it.

But I just don't know what your closest case is for the proposition that this satisfies the redressability requirement.

Let's assume that the President, were interested in implementing our orders.

We send something to Congress, and maybe that's the end of it there.

Can we force the Congress to act?

Mr. Lee: Well, the, the order would go to the Secretary.

The Secretary would submit a new apportionment count to the President that would be free of the estimations and the question then is what would the President do.

And the President under two alternative, but not necessarily inconsistent theories, of eight justices in the Franklin case would certainly conform and would present those same numbers, that same revised apportionment count.

Mr. Dellinger: Mr. Lee--

--Let me just... what's your closest case to show that a declaration of this kind satisfies the requirement of redressability?

Mr. Lee: Well, I believe it's Franklin, Justice Kennedy.

Mr. Dellinger: Excuse me.

Other than Franklin.

Because Franklin was a fractured opinion.

Mr. Lee: Well, one understanding consistent with Justice O'Connor's opinion in Franklin would be that of a declaratory judgment.

It does not in and of itself bind the parties.

It rather declares the law.

It is not a, it is not a, a binding order in the sense of ordering parties to do anything.

Mr. Dellinger: Well, it does bind the parties in a certain extent.

It's just, there is no action required as a result of it.

There is no mandate saying you must do this.

Mr. Lee: That's right, Mr. Chief Justice, and I think that that's consistent again with Justice O'Connor's plurality opinion in Franklin.

Mr. Dellinger: We have never held that a declaratory judgment will issue where the Court has no power to compel the action that the declaratory judgment describes.

I mean, you cannot get jurisdiction by saying well, you know, we have no power to, over this person to compel any action, but we are just going to declare what the law is because this person, you know, might follow it.

I don't think that's a basis for jurisdiction.

Mr. Lee: Well, Justice Scalia, but I think there are two alternative theories.

One is Justice O'Connor's approach and the other is Justice Stevens' approach in Franklin, and Justice Stevens' approach in Franklin in fact, is in fact that the President is required to conform with revised numbers.

But the Secretary might represent--

Mr. Dellinger: But you are actually taking a position also that whether or not the President would respond, at least the Secretary would have a duty to do something in response to our order.

Mr. Lee: --That's exactly right.

Mr. Dellinger: Is it quite common that in suits the President is not named, and the Secretary is.

But I wanted to go back to a question... the President has acted, but Congress has not.

Am I correct?

Congress is waiting on what this court does?

Mr. Lee: The final step, Justice Ginsburg, in this process, is for the clerk of the House of Representatives to forward to the states a certificate that shows how many seats in the House of Representatives they are entitled to after clerk receives the revised numbers from the President.

And this Court in Franklin indicated clearly that that duty is a ministerial duty and that we can absolutely expect that the clerk of the House will follow suit.

So the only question is with regard to the President, and either under Justice O'Connor's approach or under Justice Stevens' approach in the Franklin opinions, we can and should expect that the President will in fact conform to this Court's order.

Mr. Dellinger: You only have a certain amount of time, Mr. Lee.

I want to ask you a question about the merits of the case.

Are you saying in effect that there has to be a specific, something more than just a little bit of educated guesswork with respect to every house in the country?

Mr. Lee: Well, the actual enumeration clause of the Constitution would require an actual count, and--

Mr. Dellinger: Okay.

But what, supposing that the census people have, they see a house, and they see a car in the driveway, but they can never find anybody home, and then someone sees lights on late at night.

They do their best.

Do they have to say nobody lives there?

Mr. Lee: --Yes, they do, Mr. Chief Justice, and one of the reasons is that the mere fact that there are lights on and cars there doesn't tell us that this is anyone's usual place of residence.

It may be a seasonal vacation home.

Mr. Dellinger: It doesn't confirm it, but isn't it a permissible inference for the census takers?

Mr. Lee: Well, at some point a census taker may make a conclusion, if it's based on information specific to an individual household, may make a conclusion that a household is in fact occupied.

Our position is that what the Census Act requires, Section 195, is... what the Census Act prohibits, rather, is the use of information specific not to that individual household but specific to an entirely different household for the purpose of drawing an inference.

Mr. Dellinger: Okay.

Would you, on that theory, would you agree that although they may not impute a number beyond one, it would be fair for them at least to count it as one?

Because they start out as I understand it with a, in effect a report from the post office saying, you know, this is a house at which somebody lives.

So isn't that kind of hearsay just as good as, let's say, the next door neighbor's hearsay at least to the extent of saying somebody lives there and they can count one person?

Mr. Lee: Justice Souter, they don't start out with the proposition that this is a house and somebody lives there.

They start out with the proposition that this is an address.

Mr. Dellinger: Well, doesn't an address usually mean somebody lives there, at least if we can establish that it's a residential neighborhood?

Mr. Lee: Not necessarily, for a number of reasons.

Number one, you have got the seasonal home problem.

It may be no one's personal, no one's usual place of residence.

Number two, you have got the problem that some things that look like homes and that are in residential areas actually turn out to be businesses.

Mr. Dellinger: What percentage of homes in the United States when they take the census turn out to be vacation or second homes?

Mr. Lee: I don't have that number handy off the top of my head, Justice O'Connor.

I believe that it is in the record, but I'm not aware of that.

The total number of imputations was with regard to 620,000 unrelated--

Mr. Dellinger: But the imputation techniques apparently treat all the dwellings that are identified as residences to be counted?

They don't discount for a percentage that are vacation homes?

Mr. Lee: --No.

They do not.

And that's part of the problem.

Part of the problem here is that imputation assigns occupancy not only to units, Justice Souter, that are known to be houses.

Mr. Dellinger: That's saying that they are doing it bad.

We have to assume they are doing it good.

I mean, suppose they have learned with experience that an old age home that has two bedrooms in each apartment and that has a sign out in front that says "full", has two people.

One in each bedroom.

And now they learn something about this house.

It's an old age home.

It has two bedrooms.

And the sign in front says full.

Now, can they make the assumption that this too has two people in it?

Mr. Lee: I think not.

Mr. Dellinger: Not.

Now, why not?

Can they make an assumption that if the pizza man delivers pizza to the place and people eat the pizza, i.e., at least it disappears, that there is someone in the house?

Can they make that assumption?

Mr. Lee: They cannot, Justice Breyer.

Mr. Dellinger: They cannot make the assumption about the pizza man.

They deliver it to the door and the food disappears and the lights are on and off.

They can't make that assumption?

Mr. Lee: No.

People in businesses eat pizza and people who are living, staying temporarily in a vacation home eat pizza.

Mr. Dellinger: And by the way, there is a sign in front that says this is not a vacation home.

[Laughter]

Mr. Lee: Then I suppose... I suppose under those circumstances, then we'd have information.

But--

Mr. Dellinger: Fine.

Once you are down, once you are down that road, then you are then... then I can easily construct examples where the imputation is absolutely as strong.

I mean, I just did that with my old age home.

So you are not against imputations, you are against weak imputations.

Mr. Lee: --No.

I'm against sampling because that's what the statute prohibits.

Mr. Dellinger: You have to take that position.

Mr. Lee: I think it's important, though, to answer your question, Justice Breyer, to go back to the baseline of the House of Representatives decision.

It holds that a method proposed by the Census Bureau in 1997 is a method of sampling.

We know that much, and so there is really a narrow statutory question presented here and it is, is this particular method meaningfully different?

And the answer is that it is not.

It is not under the statistical understanding of the term sampling.

It also is not because the definition that the appellees are proposing here is a definition that would nullify this Court's decision in the House of Representatives because the two methods simply are not distinguishable.

Let me talk about the appelees' definitions and explain why that's true.

The definitions that they propose say that sampling is limited to methods that are employed as a last resort, only after an initial effort to enumerate the whole population.

Under that definition, in fact, both, neither one of the methods that's at issue here would follow sampling, and so that effectively is an argument that the Court got it wrong in House of Representatives and that that case ought to effectively be nullified.

And here's why.

Mr. Dellinger: Are you suggesting, Mr. Lee, that the Census Bureau goes about this thing in a way, say, supposing you have a lake in northern Wisconsin where the temperatures get down to about 40 below in the winter.

So you know it's not a year-round, you see a bunch of houses around the lake.

The census people come along and do you think if they could find somebody there, they would just automatically say yes, that person counts?

Without inquiring as to whether it's a vacation home or not?

Mr. Lee: Well, if they know that there is somebody who is living there, they have to find out whether the somebody who is living there lives there as his usual place of residence, or that person doesn't count in the apportionment count.

But what's going on--

Mr. Dellinger: But under the imputation method as I understand it, the assumption is made that if a house is there, that it is a residence, and a second assumption is made that the number of occupants will be that in a general geographic area of other homes.

Is that right?

Mr. Lee: --That's right.

And that's exactly the sense in which this particular method of imputation is a method of sampling.

The Census Bureau took a sample of 620,000 addresses.

They called them donor housing units in the 2000 census.

It used that sample of 620,000 addresses or housing units as a representative sample of the 620,000 addresses that they never were able to count on the theory that they were representative, knowing that next door neighbors are not always the same, but that generally across the board, if you take the 620,000 sample or donor units and use them to estimate the 620,000 addresses about which we know nothing, generally across the board it will average out and it will be representative.

And that's sampling.

Sampling is taking information about the parts to make an inference about the whole.

Mr. Dellinger: I'm curious both in your argument here this morning and in the brief, I think both parties seem to assume that the key question is whether or not this is sampling.

Do you take the position that other statistical methods of adjustment are permitted just so long as they are not called sampling?

Mr. Lee: Our position is, Justice Kennedy, that any method that takes information from a part of the population to make an inference about the whole is a method of sampling and is prohibited.

Now, there are methods, statistical methods that the Bureau uses that don't amount to sampling that are permitted.

Let me give you one example.

Mr. Dellinger: Go ahead.

Mr. Lee: It's called the method of quality assurance, and the quality assurance phase, what the Bureau does is to randomly send out enumerators to given census tracts to try to find the tracts where there are a large number of errors, where the enumerators may have made a lot of mistakes.

But the response to that is to send out an additional army of enumerators to those problematic tracts to sort out the problem to get the new information.

Now, that's an actual count.

That's not sampling but it's a statistical method.

And so that's an example.

Mr. Dellinger: What about a house where they have not been able to find anybody to talk to, no returns sent back, so they go to the people next door and they say is there anybody living in that house and the person next door says yes, there are two people.

Now, is that permissible under your theory?

Mr. Lee: That is permissible under our theory.

That's the use of proxy data that the Bureau currently engages in and Mr. Chief Justice, that would be permissible.

Mr. Dellinger: But the Act refers both to sampling and to other methods of statistical adjustment.

It seems to me sampling is a way to gather the data, and what we are talking about here are statistical assumptions made to evaluate the data, and I'm not sure why you have to concede that you lose if we say this isn't sampling.

Mr. Lee: Well, there may be another way to get there, Justice Kennedy, but my understanding under the statute is that Section 195 prohibits the statistical method known as sampling.

That may suggest that there are other statistical methods that are not, that don't amount to sampling, and the quality assurance example that I gave I think is one of those examples that would be permitted under the statute.

But all methods that take information from a part, from these 620,000 addresses that are occupied, to make an inference about the rest of the population, the 620,000 addresses that we don't know anything about, those are methods of sampling and again you really cannot distinguish this method in any meaningful way from the method that was struck down in 1997.

The principal difference is that instead of 620,000 addresses about which we know nothing, under the 1997 plan, the Bureau anticipated that there may be many more.

Mr. Dellinger: Yes.

But there is one significant difference and that is in the technique that was struck down before, a number of inferences are being drawn from the so-called sample.

In this case, only one inference is being drawn from a sample of one, and that is at least a tremendous difference in degree, and I suppose it's a difference in degree that would be likely to have an effect on accuracy.

Mr. Lee: In fact, Justice Souter, that is not a distinction.

The fact that there is an imputation being made one individual housing unit at a time, again, does not distinguish this method from the method struck down in the House of Representatives case.

Mr. Dellinger: Well, it wouldn't in a literal sense if you were simply making one imputation at a time, but you were making a long series of imputations from the one sample, in this case, the one house.

But this is simply one imputation made one time, and it involves not so much a, a principle of selection, or let's put it this way.

You can characterize it not only as based on a principle of selection, but you can, you can characterize it on, on a rule of probability, like birds of a feather flock together.

People who live next door tend to be much alike.

So it seems to me that there is a qualitative difference and a quantitative difference.

Mr. Lee: But Justice Souter, once you pool all of the individual housing units together, the 627... 620,000, rather, of these housing units that were used to estimate the 620,000 addresses that we know nothing about after six follow-up visits, that's your sample.

That's your group.

Mr. Dellinger: No.

Your sample isn't 620 to tell you about just any random 620.

It's, it's a selection of one to tell you about one more which is right next to it.

So it seems to me that it sort of masks the issue to talk about 620 and 620 as opposed to one and one.

Mr. Lee: Mathematically it seems to me, though, Justice Souter, we get to the same end.

This is an intermediate step, even though it happens on a household by household basis.

It's an intermediate step for the clear purpose of making an ultimate inference about the population as a whole.

If, for example, there are three--

Mr. Dellinger: Yes, but that, I mean that would be true about any inferential conclusion.

I mean, strictly it would be true I suppose even if accepting the hearsay conclusion is true.

And there is an awful lot of inference that does not fall within anyone's notion of what is a sample or what is in a technical sense a statistical method.

Mr. Lee: --It is also true, however, Justice Souter, of the method struck down by this Court in the House of Representatives case.

And I probably didn't make this clear enough the first time I mentioned it so let me just make it one more quick time.

Under the 1997 plan, it's clear that the Census Bureau proposed to estimate the roughly 10 percent of the population that it was not going to enumerate one individual housing unit at a time.

As is indicated in the administrative record in this case at page 1647, it was precisely the nearest neighbor assumption that the Bureau had in mind under the 1997 plan.

So that truly is not a distinction between this particular method and the method at issue in the House of Representatives case, and thus the argument that's being proposed here really is an argument that would effect an end run around the House of Representatives decision.

Mr. Dellinger: Mr. Lee, as I understand it, the imputation method that was actually used after the 2000 census has the effect of counting non-households as households in some instances?

Mr. Lee: That's correct, Justice O'Connor.

Mr. Dellinger: And it counts one household several times in some instances.

Mr. Lee: That's correct, because some of these are different--

Mr. Dellinger: And, all right.

And the imputation is not based on the nearest neighbor.

I mean, there is a big block of homes, and the assumption about who lives on it is not based on a nearest neighbor.

Mr. Lee: --Ordinarily, as I understand it, it is the nearest neighbor address that's used to estimate or impute the address about which we know nothing.

Mr. Dellinger: That's not my understanding, but we can explore that with the other side.

But I was concerned because it seems to be a method that does amount to what we said couldn't be done, in House of Representatives, on a much smaller scale.

Mr. Lee: That's exactly right and of course the scale of the practice is beside the point.

Mr. Dellinger: Well, they say it isn't beside the point.

I take it that their argument is basically in House of Representatives, what the census was trying to do was to use a special kind of inferential method to determine the population of an entire area.

Well, here they are using an inferential method to determine the population of an individual house.

Now, if you don't make that distinction, and you say that distinction is irrelevant, we are left with your distinction which seems as Justice Souter just pointed out to be the same as all inference.

In other words, I infer that when you deliver pizza and it disappears, someone is in the house, because of the set of similar to pizza type cases that I have seen in the past.

Or, you know, that's I think what Justice Souter was bringing out, they have a different distinction.

Now how do I deal with the problem?

Mr. Lee: Well, Justice Breyer, let me mention two reasons why that distinction doesn't get them anywhere.

It doesn't get them anywhere number one because it simply isn't borne out in the statistical understanding of methods of sampling, in two senses.

Number one, the statistical understanding of sampling says generally, what statisticians understand to be encompassed within the general category of sampling is taking information from a part to make a statistical definition.

Mr. Dellinger: You have the statistical definition, but my question was directed at a particular problem that, if I take your approach I can't get myself out of.

That is, that your definition applies to all inference.

Their definition distinguishes among kinds of inference and they have their statistical support.

Mr. Lee: The problem with the distinction is, another problem with the distinction is that it's clear that it would permit the Census Bureau to replicate the 1997 plan.

If you buy that distinction, the Bureau can get back exactly to where it wanted to go in 1997 merely by scaling back its nonresponse follow-up efforts.

Mr. Dellinger: I don't understand the pizza man.

Does the pizza man, does that inference consist of imputing something from the part to the whole?

I mean, I would think that's your answer to the pizza man example.

It is an inference.

No, no.

It goes from the whole to the parts.

But it's not the same kind of inference that is done by what you say is sampling, mainly, imputing information that belongs to a part to the whole.

That's not what's going on in the pizza man case.

Mr. Lee: Maybe, Justice Scalia and Justice Breyer, maybe I missed the pizza man example, but that may well, that may well be a distinction.

Mr. Dellinger: I didn't think the imputation involved any actual things like looking at, when pizza was delivered.

It involves looking at what houses returned, take a big block in the district they are serving.

It involves looking at the houses that returned the form, looking at the houses where they reach people in a follow-up visit, and there are some they may might still be missing and so they impute the map.

They don't go see if there is a car in the garage or look at the pizza delivery.

They arbitrarily say we are going to impute from the data we have that there are X number of additional houses and that X number of houses are occupied at a certain level of occupancy.

That's what's going on.

Mr. Lee: That's exactly right.

That's precisely right, Justice O'Connor.

The pizza man knows how many people live there.

He is a proxy and he can give that information to a census enumerator.

But the end run problem is illustrated by this distinction; if the Census Bureau can use any methods that fall within the definition that's now being proposed, the Bureau can simply scale back slightly its nonresponse follow-up effort and estimate increasing percentages of the population, up to and even exceeding the 10 percent that was proposed in 1997.

Mr. Dellinger: Mr. Lee, didn't it prove out that, after, that in the majority of these cases, something like 75 percent, that they know for sure that these were houses where people lived?

Mr. Lee: Actually not, Justice Ginsburg.

The 75 percent figure is misleading and completely unhelpful.

At page 445 of the joint appendix the memorandum that's at issue there simply says that in 75 percent of the status imputed cases, status imputation was done with regard to enumerator returns or respondent returns.

In other words, these were not mail-back returns.

Mr. Dellinger: But you don't have a negative showing, either, that it wasn't accurate?

And there was something Justice O'Connor said, and I'm not sure whether I fully understand it.

I thought that this imputation was made for people who didn't respond to the mailing, that the like comparison was with the group of people that were eventually counted, but that they were nonrespondents the first time around.

Mr. Lee: That's right.

I think if understand your question, Justice Ginsburg, I think that's right.

They took information from initial nonresponding households, used those as a sample of those who never responded, and some of those may well not have been homes, Justice O'Connor, some of those may well have been duplicates, etcetera.

If there are no further questions, Mr. Chief Justice, I'd like to reserve the remainder of my time for rebuttal.

Mr. Dellinger: Very well, Mr. Lee.

Mr. Dellinger, we'll hear from you.

ORAL ARGUMENT OF WALTER E. DELLINGER ON BEHALF OF THE NORTH CAROLINA APPELLEES.

Mr. Dellinger: May it please the Court, because North Carolina believes very strongly that the right time to challenge the Census Bureau's planned use of a statistical method is before rather than after the census is completed, let me begin by--

Mr. Dellinger: Well, how could the challenge have been brought before Utah knew that the imputation figures caused this problem?

Mr. Dellinger: --Under your decision in House of Representatives, I think on page 332, you note that citizens of Utah, you didn't specify the state, but citizens who anticipate that the use of a method like imputation, as suburbanites might, would dilute their in intrastate districting representation, are specifically said in House of Representatives to have authority to bring that suit.

So I think that there would have been parties able to litigate it.

In response--

Mr. Dellinger: Well, you can't bring a suit before you know about what's going on.

Mr. Dellinger: --Yes, you can, Mr. Chief Justice.

It is true, as you noted, that there might not be a special incentive on Utah's part, but they don't know they are going to be the loser.

They might have come out better or worse with or without imputation.

But every governor, attorney general, states and cities are carefully watching this.

Many as you know sued in 1997.

So the suit could have been brought that, by any resident of a suburb could have had an expert allege that they are going to be diluted if you impute households because it's rural areas where the files are often damaged or--

Mr. Dellinger: But Mr. Dellinger, a state can't, you suggest there are suburban people, city people, a state can't, until it knows what the result is going to be, and Congress used the words any aggrieved person.

The state, you are saying is the state can never bring such a suit, because it is not aggrieved before.

It can't predict that it's going to be aggrieved.

It will know only when the returns are in, so in effect, you are saying this is not a question that the state has come too late.

It's not sooner or later, it's a never question for the state.

You're saying Congress simply did not authorize the states to bring this kind of case.

Mr. Dellinger: --Justice Ginsburg, that is correct, if a state is unable to show, does not have the experts about a forthcoming census that is unable to demonstrate that it will be aggrieved.

How much we should worry about a nonaggrieved party not being able to obtain judicial review is--

Mr. Dellinger: They are aggrieved at the end of the line.

Mr. Dellinger: --They are now, but my point is that if Utah had been watching this carefully, and as you know, many states were involved in the '97 litigation as amici and otherwise.

Surely the Governor could have found many citizens of the State of Utah who, and this suit itself includes individual voters, some of whom may very well, the plaintiffs--

Mr. Dellinger: The governor had no incentive to do so.

Mr. Dellinger: --I understand that.

Mr. Dellinger: He could have gotten a stalking horse to, some suburbanite to bring the suit but he had no notion that there was any reason to do that.

Mr. Dellinger: It seems to me that that is exactly correct, but that it's exactly why any governor, major city mayor or others, these citizens, those who brought suit in 1997 and did not include this, suburbanites are going to hurt, would want to sue, could bring the suit, but in any event, they could also participate in the Bureau's process.

Utah never made this objection.

Now, here's why that's so unfair.

It's simply this.

The, it is, we don't know who would have gained this seat if Utah had bought its objections to the Census Bureau before the census was conducted.

Mr. Dellinger: Is there a statutory time period for people to challenge the Census Bureau proposed techniques before the census is taken?

Is there some provision whereby that challenge can be made?

Mr. Dellinger: Yes.

The public law which was the basis for the suit in 1997 is a permanent law, and that suit allows aggrieved parties to bring suit when the census produces its plan.

So it's certainly at least--

Mr. Dellinger: But is it a fact that somebody is aggrieved when you are at the stage of the Census Bureau just saying this is what I plan to do?

Mr. Dellinger: --Yes.

The law involved, the public law, that was a basis of the '97 suit makes it clear that if you could say if they do that plan, that's exactly how it works in House of Representatives, if you do that plan, we expect that our district will be diluted.

Mr. Dellinger: Well, does the law provide for some sort of administrative hearing before the Census Bureau, some sort of an exhaustion requirement?

I thought that's what you were suggesting.

If Utah had just brought this to the attention of the Census Bureau.

Is there some structure for doing that?

Mr. Dellinger: Yes.

The Census Bureau does have a structure for doing this.

I'm not saying that they are foreclosed because they didn't participate in the administrative process, but the Bureau was open to hear these objections and the courts were open to hear them.

Mr. Dellinger: But, you say now the Bureau, is that well publicized?

Is there some person you can go to in the Bureau and say I don't like what you are doing?

Mr. Dellinger: Yes.

And that is the exact process that is followed with every... that's why they publish the plan for the census.

Now, if--

Mr. Dellinger: It seems unfair to Utah, though, to say that they are supposed to bring a suit before they know they have been hurt and why.

How... what are they supposed to do?

Of course they wouldn't come in ahead of time.

For all they know, the system would benefit them.

Mr. Dellinger: --Justice Breyer, those who sued in the House of Representatives litigation had a very thin basis for knowing that they would be adversely affected.

Indiana maybe wrong in thinking that--

Mr. Dellinger: Well, of course, sometimes you could guess in advance, but a lot of times you couldn't, and it's important that there be a fair method that treats states fairly.

So why, why would it be fair, any way, to cut off those states that don't know they have been treated unfairly and hurt, until they find out later?

Mr. Dellinger: --And here's why.

Here's why it's not unfair.

Because the unfairness is so great for the disruption on the other side.

If it had been determined by the Bureau itself or through litigation that imputation could not be used in 2000, the Census Bureau absolutely would have used some means other than imputation to ascertain the enumeration of those established residential addresses whose records were damaged, missing or incomplete.

There are in North Carolina approximately 16,000 households that are established residential addresses on the carefully pruned master address list.

Those houses often were visited by an enumerator in the, often the houses were added where it was status imputation by a field enumerator during the enumeration process.

But the new form, because it wasn't on the master address list before being added, never caught up with the master address list.

So you have no residential addresses, and, and the Bureau absolutely would have had another method.

I mean, even now theoretically they could go back and start again and say what are we going to do about 620,000 established residential addresses for which we don't have input numbers, because at the end of this massive process, now, this is a process that involves 500,000 enumerators, 120 million households, one and a half billion pieces of paper, imputation occurs at the end of that process when all the records are centralized.

It began in 1960, five censuses ago because that's when computers were able to process these cards.

Damaged cards, now forms, can't be read.

The data is discrepant or missing.

It doesn't mean that these are households that were visited six times.

Mr. Dellinger: Mr. Dellinger, you have recognized that your argument is, as stated, that the position of Utah that can't project what the returns will be, does not have, does not qualify as an aggrieved person at the only moment in time when it can say that it's aggrieved.

I think you had another justiciability issue, did you not?

Because time is running and I think we grasp your position that it's too bad they are not aggrieved because they have to come in in the beginning and not at the end.

Mr. Dellinger: Yes.

Justice Ginsburg, we are not suggesting that these issues are immune from judicial review.

I believe someone could challenge imputation and would.

Mr. Dellinger: Are you sure they were not aggrieved at the beginning?

I'm surprised that you... I mean, is it not an aggrievement for the State of Utah or for any state that its districts are distorted?

Even if it doesn't lose, you know, congressmen to another state, isn't the distortation of the districts within that state a grievance of that state?

Mr. Dellinger: That is a very helpful answer, and that is not... a very helpful suggestion.

And that has not been by any means ruled out, nor has it been ruled out in my view that a state could say we believe we are entitled to have a fair process determine our representation.

This process isn't fair.

We don't know how it's going to come out.

But this process is loony.

Now, you would also see there's just a matter on the merits.

Congress has said in Title II, Section 2 that the President's determination shall be final and the states are entitled to that for the next period of time until the next apportionment unless Congress itself acts, which they specifically provide for.

That's surely constitutional because the Constitution itself in providing that the census need be done only every 10 years puts a great stake in permanency.

Now, turning to the merits, it's striking the extent to which the issues in this case are anticipated by the Court's decision in the Wisconsin case.

At page 22 in Wisconsin--

Mr. Dellinger: Before you go on to the merits, you have nothing else to say then about justiciability?

I mean, let's suppose they can file a suit.

What's the remedy going to be at the end of the day at this stage?

Mr. Dellinger: --Oh, at this stage?

Mr. Dellinger: Yes.

Mr. Dellinger: Justice O'Connor, that is a very good question.

Utah seems to assume that if the case went back to the District Court, overturning the District Court's ruling that imputation is satisfactory on the statute and the Constitution, that you would simply take out those occupancy figures for 620,000 households nationwide.

It seems to me that the, that what ought to be done is you return that to the Bureau and say now there may be time to match up the missing forms that were added late in the enumeration process.

There may be other ways to recover that data.

Ways that certainly would have been done if it were brought before the census might still be brought now.

So that we don't, it seems utterly unfair to treat all of those as zero when some of them are houses that, an enumerator comes to 212 Elm Street, it's not on his list, he goes in, interviews Ozzie, Harriet, the kids, sends in the form and it was corrupted or it didn't get matched up at the time, faced with that time deadline.

It may now be available.

We don't know who would prevail on that.

On the statutory issue I think if you look at page 22, the Court itself creates statistical adjustments as done in '70 and '80, and as they were done here--

Mr. Dellinger: Page 22 of what?

Mr. Dellinger: --I'm sorry, Justice Rehnquist.

I referred earlier to the decision of Wisconsin vs. the City of New York, the unanimous opinion.

On the statutory issue, the Court says that the statistical adjustments in 1970 and 1980 which were imputation, hot-deck imputation, were an entirely different type than the adjustment considered here, and they took place on a dramatically smaller scale.

The Court also treats actual enumeration in the Wisconsin case and speaks of actual enumeration at page 6 in the Wisconsin case as having been something that the Bureau has never, or the country has never actually achieved actual enumeration.

It's never been wholly successful.

Treating it clearly as the end result of the process, the right number and not as a method.

Now, let me go right to one point.

We do not believe that there are no constitutional limits on how Congress can conduct the census.

Wisconsin says that there is virtually unlimited deference to Congress, but they also set a standard that the congressional goal must be related to representation according to the respective numbers.

The way I read that is this.

A proposed census as designed is not reasonably calculated to produce distributive accuracy among the states is constitutionally suspect, because it will not produce an apportionment according to the respective numbers.

And that would be a fatal flaw.

Here, every imputed occupant and household is to an established residential address with a precise geographical location.

It was an effort to enumerate every household in the country by using the best information available on known household addresses.

This is historically consistent with what we did when the neighbors are asked for their opinion, the postal worker is asked for his opinion.

You use proxy information.

Here you take--

Mr. Dellinger: Mr. Dellinger, this isn't really a use of proxy information.

This isn't going to a neighbor who lives next door, this is using a statistical method to make assumptions, isn't it?

Mr. Dellinger: --Yes, it is.

Mr. Dellinger: I think you have to be realistic about that.

Mr. Dellinger: Yes, it is a statistical method by which you take, when you have a known established household address, the information from that, basically the next door neighbor, somewhat refined, Justice O'Connor, the next door neighbor that was a nonresponding household of a similar type and they found over the years that that information is more reliable than zero.

Utah's position is that the Constitution requires when you have an address known to be occupied, if you put down that it's occupied by zero people, that's not an actual enumeration, that is literally a counterfactual enumeration from what one knows to be the case.

This is a process where you use one unit's characteristics to supply to another.

Mr. Dellinger: That's just part of it.

It also, it also imputes nonhouseholds as households.

I mean, it does a lot of things.

Mr. Dellinger: It imputes only to known addresses.

Thank you.

Mr. Dellinger: Thank you, Mr. Dellinger.

General Olson, we'll hear from you.

ORAL ARGUMENT OF THEODORE B. OLSON SOLICITOR GENERAL, DEPARTMENT OF JUSTICE ON BEHALF OF THE FEDERAL APPELLEES

Mr. Olson: Mr. Chief Justice and may it please the Court: The Census Bureau has consistently utilized the imputation technique for drawing inferences about a tiny fraction of damaged, discrepant or missing population data for the past five censuses.

Mr. Dellinger: Do you agree that that's a statistical methodology or is it just a method of making deductions from circumstantial evidence?

Mr. Olson: We agree that it is a statistical methodology, Justice Kennedy, and it's very important in that context to focus on the words of the statute.

The words of the statute are that the statistical method known as sampling is the one that's prohibited with respect to the apportionment.

That statement in the statute suggests that other statistical methods are not prohibited by the statuted, and that one particular statistical method, that is the one that is known as sampling, which is in quotes in the statute, which imports that it's a term of art that was known by Congress to be a term of art.

It was a phrase that was suggested by the Secretary himself in 1957, when that statute was added, that exact phrase came from the Secretary.

The Secretary was presumed to know what that phrase meant.

It is a term of art that statisticians know what it is.

Furthermore--

Mr. Dellinger: Well, I thought the statute also said that statistical adjustments pose a risk.

Mr. Olson: --It does not say that.

In fact, the import of the statute, Justice Kennedy, is that statistical adjustments, and I will refer to what my colleague Mr. Dellinger just referred to, at page 22 in the Wisconsin decision which was unanimous decision by this Court just six years ago, distinguishing the sampling method that the Court was talking about in that case from statistical adjustments known as imputation, which is described on pages 4 and 5 of the Respondent's brief, referred to on those pages of the Supreme Court, this Court's unanimous decision just six years ago as being an entirely different thing.

We would go back also to the fact that this Court unanimously held in that case that the Constitution vests virtually unlimited discretion in Congress respecting the manner in which the census shall be conducted, and that Congress has delegated its broad authority to the Secretary to take the census in such form and content as he shall direct.

Now, the Congress has exercised that discretion by passing it on to the Secretary with the one limitation with respect, with respect to one statistical method known as sampling.

Now, at the same time, the Secretary was proposing the prohibition of the sampling method; with respect to the apportionment of the census in 1957, the Secretary was planning the 1960 census, which was the first computerized census and the first time that the imputation method which we are talking about today was used.

So it's obvious that the Secretary did not believe that hot-deck imputation was sampling, because the very next census three years later imputation was being used in that census.

And it was used again in 1970, 1980, 1990, and 2000.

And with respect to 1970, and 1980, it was actually considered by this Court in connection with the Wisconsin case.

It is widely understood in the industry that sampling is a collection of, a collection technique whereby a sample, a fraction of the whole population is used to deduct... deduce the actual whole population.

It seemed to me that a metaphor that might be considered outside the context of population gathering would be if the Court asked the library of this Court to ascertain the number of books, to conduct the number of books in the Court's library, and the, but sampling was not permitted to do that, so that the librarian could not go to every third shelf, multiply, count the books, multiply by three and get the census.

But if the librarian went to those shelves and counted every particular volume and found that there was a space here on that shelf, a space this big on the next shelf, and a space this big on another shelf, for example, the imputation would be saying well, all the books or the books right next to this are this size, and therefore that space a book is missing, so we know we have a book, and we will impute one book to that space or two books to this space.

So that the sampling technique is completely discrete from the imputation technique.

We know that because the Secretary has always regarded it that way.

The Congress has given the authority to this expert agency which has been conducting the census for years and years and has drawn various different types of inferences which is what imputations are.

Mr. Dellinger: Why, just out of curiosity.

I mean, I'd like to understand this better.

In the library, you look and see that everything around the book is a history book and so then you impute the characteristic of being a history book to the one that's missing.

That's your analogy of what goes on here, is that right?

Mr. Olson: Well, yes, I think that's an extension of it.

In the example that I was giving you look at the space and impute the size of the space by the book that is immediately next to it.

Mr. Dellinger: Okay.

Why is it called statistical?

Why isn't that just ordinary inference?

Why... you said we do it statistically?

What's statistical about it?

Mr. Olson: Well, I'm not sure.

That's a good question.

I don't know the answer to why it should be called statistics, because in my thinking of it, it is drawing logical inferences from the data available.

Now Justice O'Connor, it is not creating phantom homes.

Most of these cases in, the statistics indicated that with respect to one of the forms of the imputation, and this is in the record at the joint appendix, the information may be found in pages 445 through 448 of the joint appendix, that 98 percent of the household size imputation forms were enumerator forms with the status of occupied homes.

Now, the problem is that with respect to any, and the statistics are different, but in 93 percent with respect to occupancy imputation, 75 percent with respect to status imputation.

Each of these are attempting to find actual people drawing from the closest comparable unit and it's one unit for each inference.

It's not extrapolating from one unit to the whole population.

The problem with the census is that there are billions of pieces of paper as Mr. Dellinger indicated.

Some people refuse to return the forms and their known addresses.

Some people fill out the forms incorrectly.

They may say occupied but zero.

The enumerators might get bad information.

In 1850, a substantial portion of the entire State of California the returns were actually burned, and the Census Bureau in 1850 actually used a process to replace the 70,000 people that were not there.

And one of the questions indicated, neighbors have been used as proxies.

Heads of households have been used as proxies.

Postal service has been used as proxies.

These are all means by which the postal, the Census Bureau attempts to develop the most accurate count it possibly can.

Mr. Dellinger: When you say heads of households have been used as proxies.

Does that mean you go to the head of the household who appears at the door and ask him how many other people live in the house?

Mr. Olson: That's correct, Mr. Chief Justice, and that was the way it was done in 1790.

Mr. Dellinger: That doesn't seem too statistical.

Mr. Olson: Well, it's not necessarily statistical.

And I guess that, the fact is that as far as the statute is concerned, there is only one technique that's prohibited.

The technique of drawing inferences through sampling is prohibited.

It's prohibited probably because Congress feels that it might be subject to manipulation.

Mr. Dellinger: Yes.

On the merits, I think we have to know whether this so-called hot-deck imputation is a form of sampling.

Which it appears that it might well be.

I think that's the--

Mr. Olson: Well, Justice O'Connor, the expert agency to which Congress delegated this broad authority doesn't believe so.

That seems to me that there should be a substantial deference to the expertise of the agency.

Not only that, but Congress with full awareness that hot-deck imputation has been used over the past--

Mr. Dellinger: --Why do we call it hot-deck?

Mr. Olson: --Hot-deck imputation is distinguishable from cold-deck imputation in the sense that information from the most current census and the actual neighborhood, the most current available information for the actual census that's being developed is being used.

Now where that term came from, I don't know.

But that's what it means.

But this methodology has been used with the knowledge of Congress, with the full knowledge of Congress, for the past five censuses.

There was litigation over this matter, it's referred to as the Orr case in the briefs, where a seat may have been allocated to Indiana or Florida, depending upon how the imputation process came out.

So that litigation took place.

Congress actually changed the terminology, Section 141, which provides the Secretary with the authority to conduct the census in a manner that the Secretary thinks appropriate, in 1976.

After imputation had been used in two censuses already.

Mr. Dellinger: Of course, against all of that, and I'm not sure why we should give deference to the agency here.

They didn't conduct a rulemaking.

They didn't have any adjudication on this subject.

That's just what they happened to do, right?

Mr. Olson: Well, as a matter of fact, in the unanimous decision of this Court in the Wisconsin case six years ago, the court said substantial deference should be owed to the agency.

Mr. Dellinger: There's a lot of water over the dam since six years ago.

Mr. Olson: But the reasoning of the Court, I would submit, is--

Mr. Dellinger: I refer to Meade in particular.

And, but wouldn't the deference to the agency, even if there is to be some, potentially be outweighed by a constitutional doubt?

If we thought that even if this isn't sampling, it may well be not enumeration within the meaning of the constitutional requirement, and given, given that constitutional doubt, we think the wise course is to interpret the word sampling as including, including this?

Mr. Olson: --Justice Scalia, not only the Wisconsin case, but the other decisions of this Court which have considered census have suggested that the framers of the Constitution by using the word enumeration didn't mean a particular method by which the census would be conducted, nor did it wish to constrain both the Congress and whomever the Congress may delegate to--

Mr. Dellinger: Even sampling, presumably.

Mr. Olson: --Presumably.

Possibly.

Mr. Dellinger: Pretty accurate sampling, you know?

Mr. Olson: Possibly, Justice Scalia.

But that's nowhere close to that and this is not remotely sampling.

Mr. Dellinger: Is this remotely estimation?

Mr. Olson: This is not remotely estimation.

This is drawing an inference with respect to one particular piece of data.

We would agree that the gross estimation--

Mr. Dellinger: Why isn't it estimation?

Why isn't it estimation?

You estimate that there are so many people in this house because the house next door to it has that many people.

You don't call that estimation?

Mr. Olson: --In each of these cases, Justice Scalia, the words can be changed and added to, but the process by which the framers analyzed this in framing the Constitution, the very first House of Representatives was assigned according to an estimation, and the words actual enumeration were used to compare an actual count, an effort to find the actual number of people by indulging in a process--

Mr. Dellinger: That's why I asked about estimation.

You say there is a difference in an estimation and a deduction, I suppose.

Mr. Olson: --What I think the Constitution and courts with respect to the term actual enumeration, is an effort to go out and find a count.

We, we pointed out that the, the enumeration can mean listing by particular items as used in the Ninth Amendment, the enumerated powers.

It may be a process by which a count might be taken or it might simply refer to a census, find the population.

We submit that the Capitation Clause as we have referred to in our brief, which uses the word census and enumeration indistinguishably as synonyms, and in fact the Appellants in their brief, in their reply brief at page 15 acknowledge that the words enumeration and census are used in the Constitution interchangeably.

Justice Scalia, it didn't seem, it does not seem that the framers of the Constitution actually specified a method.

And in fact, what the Appellants were saying here today and are saying in their briefs, every census conducted by asking people who may have lived next door or drawing inferences from other pieces of information would not have been the individual by individual count that--

Mr. Dellinger: You think sampling--

--Sampling would have been okay as far as the Constitution is concerned?

Real, real sampling?

Mr. Olson: --I think--

Mr. Dellinger: We are going to do two-thirds of the state and just guess that the other third is pretty much like that.

Mr. Olson: --Well, we are not remotely close to that here.

But with respect--

Mr. Dellinger: I understand.

But your argument is that since enumeration doesn't mean anything except census, sampling would be okay.

Mr. Olson: --From the standpoint of the Constitution, I think a reasonably good argument could be made and the Government has in the past made it, that sampling if it is consistent with the process of an attempt to find an actual count utilizing sophisticated accurate and nonmanipulatable techniques--

Mr. Dellinger: Surely the term actual, though, before the word enumeration, narrows the idea that, what might otherwise be an enumeration.

Mr. Olson: --I believe it does and I think, Chief Justice, the District Court in this case distinguished actual enumeration from the conjectural apportionment that actually occurred in the Constitution itself with respect to the first House of Representatives.

What we are talking about here today, though, is an effort to, an effort to produce extremely conscientious and meticulous, to count all of the households in the United States starting with a meticulously prepared master address list.

All of those people were submitted post office forms which has been authorized by Congress for a certain--

Mr. Dellinger: That's not the issue.

Can I ask you a question about the standing issue?

I know that you in your brief do not, do not contest the standing.

You say that Franklin has decided it, because four justices thought that there was standing on one basis, and four thought there was standing on another basis.

Which of those two bases do you agree with?

Mr. Olson: --Well, we--

Mr. Dellinger: Do, do, do, is it your position that the President will have to do whatever, whatever, accept whatever revised census figures are submitted to him by, by the Secretary?

Mr. Olson: --If this Court is to, determines that the process by which the 2000 census was conducted was inconsistent with the statute or inconsistent with the Constitution and orders the Secretary to take out the imputed numbers--

Mr. Dellinger: Right.

Mr. Olson: --and deliver a different piece of information to the President--

Mr. Dellinger: Right.

Mr. Olson: --the President will transmit that certificate or that certified, those certified results to Congress for the process.

In other words, in answer to your question, the President will do what this Court assumed in those cases that the President would do.

Mr. Dellinger: He has told you that that's what he will do?

Mr. Olson: The President will--

Mr. Dellinger: You see, because, I sort of wouldn't want to make the people of North Carolina mad by taking away one of their representatives.

And were I President, I might well say, look at this judgment of the Court, doesn't run against me.

It runs against my Secretary, everybody agrees, you know, that it's not binding upon me.

It's sort of like a declaratory judgment.

And I just think too much time has passed and it would upset things too much and I don't want to take away a representative.

Mr. Olson: --The President is willing to accept the import, not only of the Franklin and the other decision that we referred to, but also if this Court decides that the process was unconstitutional or inconsistent with the statute, the President will accept that, this Court's judgment in that respect.

Mr. Dellinger: So if another, if the next President comes along, we get another case like this, and the next President tells his Solicitor General, I will not accept it, then we come out differently.

Mr. Olson: Well, if, for that reason, if Mr. Chief Justice, the Court decides that that is not the kind of result that this Court can issue, because of that possibility, we'll accept that result as well.

[Laughter]

But we think... we think it is very unlikely for that to occur, because it is quite clear that the Constitution intended to give considerable flexibility, did not want to freeze in a system the ability of the Government.

Mr. Dellinger: Mr. Olson, you are saying we can presume the President will obey the law?

Mr. Olson: Yes, Justice Stevens.

Mr. Dellinger: What happens after that?

He transmits to the Congress, I take it the clerk of the Congress says not certified, the House has not certified the results yet?

Mr. Olson: I'm not sure of the answer to that question.

I guess the answer is that is correct.

Or no.

That it has been certified and I would gather that it would have to be a revised certification if that should occur.

Mr. Dellinger: You say you assume the President will obey the law.

So you are accepting the... you are accepting the position that the President must, even if he didn't want to, that the law requires him to transmit whatever the Secretary gives him, is that right?

Mr. Olson: What we are saying--

Mr. Dellinger: Just answer that question yes or no.

Do you take the position that the President must transmit what the Secretary gives it to him, and he has no, no objection?

Mr. Olson: --I only can answer it this way, Justice Scalia.

If this Court determines that the process before was unconstitutional or in violation of the statute and the Secretary must redo it and if that information is transmitted to the Secretary, he will transmit that.

Mr. Dellinger: That is not the question I asked.

Mr. Olson: Then I misunderstood your question.

Mr. Dellinger: The question I asked is whether, you say the President will obey the law.

I take that to mean that you feel the President is bound by law to transmit whatever revised figures the Secretary takes, is that correct?

Mr. Olson: If it is based upon a decision by this Court that the Court has the power to issue--

Mr. Dellinger: To tell the Secretary.

Let's assume we have the power to tell the Secretary.

Does the President acknowledge that he is bound by law to transmit whatever figures the Secretary gives him?

Mr. Olson: --I think that that would only occur in the context of this Court's decision.

Mr. Dellinger: If not, he is not bound by law and I don't think you are going to give that away.

Mr. Olson: I don't think we need to give anything away, Justice Scalia.

We would be talking about a context in which this Court came to the conclusion it could render a jurisprudentially binding decision in a case in which there was redressability in that context.

Mr. Dellinger: Fine.

But that's a far cry by saying he is bound by law.

You seem to be accepting Marbury and Madison.

[Laughter]

Mr. Olson: Let me just summarize because my time is about up.

This Court's words again, that the Constitution gave virtually unlimited discretion to the Congress with respect to the manner in which the census would be--

Mr. Dellinger: Extend your time by two minutes.

I'll extend Mr. Lee's time by two minutes.

Mr. Olson: --Thank you, Mr. Chief Justice.

There is no evidence that the framers of the Constitution wanted to bind themselves to a particular method of counting people.

All of the evidence suggested that what the framers wanted to do was to have a reasonably reliable accurate, reasonably accurate count of the citizens in the manner that the, that Congress would determine.

Congress in the words of this Court has delegated all of that broad authority to the Census Bureau.

The Census Bureau, conscientiously using a technique that they have been using consistently for 50 years with the awareness of Congress, the General Accounting Office, oversight committees and the actual awareness of this Court, as reflected in this 1996 decision, has demonstrated, developed a method that is reasonably accurate, uses statistical methods other than those known as sampling to get an accurate court.

We urge the Court to sustain that outcome.

Mr. Dellinger: Thank you, General Olson.

Mr. Lee, you have five minutes remaining.

REBUTTAL ARGUMENT OF THOMAS R. LEE ON BEHALF OF THE APPELLANTS.

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

I have just two or three quick points.

The first is to clarify briefly the record on an important issue.

With all due respect to the Solicitor General, the record does not indicate that the majority of the imputations here were in units known to be occupied.

The Bureau's memo at page 445 of the joint appendix indicates that fully 69 percent of the units subjected to imputation were the kinds of units that Justice O'Connor's questions directed us to be concerned about, units where after as many as six visits, census enumerators were not able to determine whether the unit in question was a valid occupied housing unit and not a duplicate, not a seasonal home, not a home that happens not to be occupied.

Second, I would point the Court to another unanimous decision that this Court has handed down with regard to the census, and it's the Montana decision, and I'd like to read a brief quote from Montana and explain how important I think it is here.

This is from 503 U.S. at 465.

"To the extent that the potentially divisive and complex issues associated with apportionment can be narrowed by the adoption of both procedural and substantive rules that are consistently applied year after year, the public is well served."

That is precisely the goal of both the Census Act and the Census Clause.

To give us rules that can be consistently applied year after year, not rules that will ebb and flow with debates among statisticians, and that's where the Census Bureau is heading us here.

The variable standard that will be produced by a debate as to whether a particular method of sampling is sufficiently premeditated or follows a sufficiently premeditated intent to--

Mr. Dellinger: What about what we said in the Wisconsin vs. New York case by your opponent, Mr. Dellinger, where we referred to this very kind of action, this imputation, and indicated that that was vastly different from the broader statistical?

Mr. Lee: --I don't believe that was an issue in that case, first of all, Justice O'Connor.

Secondly, there isn't any reason to give either deference to the Secretary here or much less to congressional inaction for a very important reason.

Imputation simply has not been on anyone's radar screen.

It's been a nonentity because it's undisputed that it impacted apportionment only once prior to this case, in 1980.

In 1960, in 1970, in 1990, it had no impact.

Congress reenacted the statute, amended the statute in 1976.

At that point in time, imputation had never affected apportionment to any degree whatsoever.

There was no reason for anyone even to be focusing on it and therefore no reason to give any deference here.

I'd like to just close by saying a few brief words about the constitutional question here.

Mr. Chief Justice, to go back to your question about the word actual.

The word actual is important, and it's important because it's not just that the word enumeration is defined to mean an actual count and not an estimate.

It's that this was a term of art.

This phrase actual enumeration was used consistently in the founding era, both in colonial assessments of population when they reported their populations to boards of trade, and also in Great Britain throughout the 18th century.

James Madison himself referred to a distinction between an actual enumeration and a mere estimate.

John Adams similarly said there is a difference between an authentic enumeration and a mere estimate.

Not only that, but the framers of the Constitution thought they were giving us a permanent, fixed standard.

That's what they said they were doing and James Madison said not only is it permanent and fixed, it is the way required by the Constitution and

"which we are obliged to perform."

It was a methodology; they understood it as such; and they understood also that it had its shortcomings.

They knew that it would result in an undercount, that when you require a count, you are going to leave some people out.

George Washington himself said look, we understand at the time of the first census that the real numbers will exceed greatly the official returns.

Thomas Jefferson similarly said we know that the omissions in the census will be great.

If they understood those limitations, then why did they do it?

The answer is clear.

They understood that that was a necessary price of a permanent, fixed, precise standard that would not be subject to manipulation, that would not be subject to the vicissitudes of debates among not only politicians, but statisticians from year to year.

And the impulse, the proper impulse of this Court's unanimous decision in Montana--

Chief Justice Rehnquist: Thank you, Mr. Lee.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Primate Protection League v. Tulane Ed. Fund - Oral Argument

Fri, 09 Jan 2009 14:49:44 +0000

Case:

Primate Protection League v. Tulane Ed. Fund

Media File:

90-89_19910320-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Margaret E. Woodward

Chief Justice Rehnquist: We'll hear first this morning in argument No. 90-89, the International Primate Protection League and Its Members, et al., v. the Administrators of Tulane Educational Fund.

Ms. Woodward.

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

Petitioners brought this suit in State court under State law against NIH and two private entities.

NIH argues to this Court that it removed to ensure that its Federal defenses would have a fair forum in Federal district court.

NIH passes very quickly over the fact that its would-be protector, the Federal district court, quickly dismissed and rejected its vaunted Federal defenses.

What remained in this case then were issues of State law, a serious question whether NIH, the removing party, had any legal interest in this case whatsoever, and article III standing requirements that applied in Federal court but which would not have applied in State court, the forum of choice by petitioners.

On a questionable appeal, the Fifth Circuit ordered the case dismissed.

Unknown Speaker: But what do you mean on a questionable appeal?

Mr. Woodward: Mr. Chief Justice, I will try to explain to you what I myself have never understood.

When this--

Unknown Speaker: That may be a difficult task.

[Laughter]

Mr. Woodward: --When this case was first removed to Federal court, NIH accepted service.

NIH accepted the issuance of a temporary restraining order against it.

That restraining order had not been issued by the State court.

We had not had NIH served in State court, because we questioned even at that time NIH's interest in the case.

We immediately moved for remand, both on the issue on which this Court has granted certiorari and on the questionable interest of NIH in the case.

The district court was initially skeptical.

But after NIH was found out misrepresenting the facts of its involvement to that court, she ordered discovery on the NIH's interest in that case and at the same time heard two successive motions to dismiss.

NIH, following the denial of those motions to dismiss, moved for an appeal from the denial of the motion to dismiss.

Unknown Speaker: Do you oppose the motion to dismiss?

Mr. Woodward: Yes, Your Honor, we did oppose the motion to dismiss.

Unknown Speaker: I would think that if you hadn't wanted to name them in the first place, you wouldn't have wanted them in the case.

Mr. Woodward: Mr. Chief Justice, NIH takes the position that our having named them as a party in this suit is an unretractable admission against interest.

It was a pleading that was drafted in haste.

It was a pleading which we ourselves questioned and which we immediately set about to conduct discovery on.

That discovery was ordered by the district court, but the discovery was never concluded, because NIH, which not only resisted any hearing on the merits of this case, but also resisted any inquiry into its interest in this case, refused to comply with discovery.

And after discovery had been ordered, NIH brought the appeal.

Unknown Speaker: So, you... you named NIH as a party.

Mr. Woodward: Yes, Your Honor.

But we--

Unknown Speaker: And you later decided you didn't want them as a party?

Mr. Woodward: --That's correct.

Unknown Speaker: When did you notify the district court of that?

Mr. Woodward: Your Honor, we notified the district court immediately.

We had not served NIH.

Unknown Speaker: Can't you dismiss on your own motion under the rules if you could... haven't served them?

Mr. Woodward: It was NIH's position that it would intervene as an indispensable party and it was addressing that issue as well as our questioning of their interest in this case.

But the court insisted the discovery go forward.

But that discovery was forestalled by NIH's taking of an improper appeal from the denial of its motion to dismiss.

That... the denial was not certified by the district court.

It was clearly improper.

And as a companion--

Unknown Speaker: That's what you mean term questionable appeal.

Mr. Woodward: --It goes further than that.

As a companion to that notice of appeal, the respondents filed a motion for a stay in the district court.

In opposition to the motion for a stay, we urged that the appeal was improper, that the request for a stay was improper--

Unknown Speaker: A stay of what?

Mr. Woodward: --A stay of the temporary restraining order, and more pertinently at that time, a stay of the discovery on NIH's interest in the case that had been ordered by the district court.

We filed our opposition urging that the appeal was improper.

And on the night before the motion for stay was to be heard, NIH filed a motion for indicative ruling, with which this Court may be familiar but of which I have never heard and have found no reference to in any legal periodical or case.

The district court entertained that motion for indicative ruling on the morning of the hearing on the motion for stay.

I had not had an opportunity to respond, but it was my argument to the court that the court did not have jurisdiction to hear that motion.

The district court--

Unknown Speaker: Well, I wonder if perhaps, Ms. Woodward, if perhaps very likely in response to my question, we aren't getting somewhat away from the question that's presented here... whether the removal statute authorizes NIH to remove?

Mr. Woodward: --We are, Your Honor, and... and time is very short here.

We did file a motion to dismiss the appeal in the Fifth Circuit.

Our writ for certiorari of course is premised on an assumption that the Fifth Circuit did have jurisdiction over this case, all... albeit we questioned that jurisdiction as an issue for the Court to address.

And if the Court does find that jurisdiction did not lie in the Fifth Circuit, the appropriate remedy we contend would be for this Court to vacate the decision of the Fifth Circuit and remand the case to the district court for appropriate [inaudible].

Unknown Speaker: Now, as the case comes to us, it's been determined that the petitioners lacked standing.

Mr. Woodward: Yes, Your Honor.

Unknown Speaker: How is it in that posture that we are able to consider the removal question?

Mr. Woodward: This is one of the interesting ironies of the case, Your Honor.

Article--

Unknown Speaker: Yes, I'm very interested in how you overcome that.

Mr. Woodward: --Article III standing requirements only apply, of course, in Federal court.

And presupposed--

Unknown Speaker: And you take the position that there is standing... there would be standing as a matter of State law in State court--

Mr. Woodward: --Yes, Your--

Unknown Speaker: --but the Federal courts have determined that you have no standing under article III.

Mr. Woodward: --The Federal courts have determined that we have no standing and this Court did not grant writs on that question, although we attempted to bring it up.

So that is not squarely before you, but it is also a jurisdictional issue on which the Court has granted writs whether or not section 1442(a) permits removal by a Federal agency to a Federal district court.

Obviously, if the removal was improper then it is improper for article III standing requirements to be imposed on these petitioners who have brought a State claim.

And because both are jurisdictional questions, in effect, it seems to me that the threshold jurisdictional question is the jurisdictional question of whether removal was proper in the first place.

One of the greatest injustices in this case is that, as the Fifth Circuit analyzed it, it could reach the standing issue first and did reach the standing issue first.

And what it found... because it found that petitioners lacked standing... was that not only could petitioners' claims not receive a hearing in Federal court, but also the Federal defenses, which supposedly under Mesa are a prerequisite to the removal, were not entitled to any consideration.

So untested in this Court are the claims and the jurisdictional basis for the court's imposing article III standing requirements.

Unknown Speaker: Are you arguing that the district court and the circuit court and this Court is really required... are really required to reach the removal issue at some point, because if you base the case simply on lack of standing, it goes back to the State court, at which point NIH removes back to Federal court which goes back to State court based on standing.

So we have to reach removal at some point.

Is that correct or not?

Mr. Woodward: Your Honor, I would be happier if I were on that kind of treadmill.

What the Fifth Circuit ruled was that there was an absolute right of removal and that our case was not to be remanded as we urged even against the private entities IBR and Tulane University... but that the case was to be dismissed with prejudice as a whole with no hearing in any court on any issue.

And that, it seems to me, is an affront not only to the Constitution and to justice between the litigants but to comity, because the State courts had an interest here.

And the State of Louisiana had an interest in seeing its public policy enforced through the claims that were brought by these petitioners.

Unknown Speaker: Well, Ms. Woodward, why... why isn't it reasonable, assuming that the removal issue was decided correctly, why is it unreasonable for the Federal Government to say, we only want our agents and agencies to be sued by somebody who has standing to sue them as we view standing?

Mr. Woodward: Your Honor--

Unknown Speaker: The State can allow other people to be sued on the basis of whatever standing rules they want to develop.

That would lead to the conclusion that this case would be res judicata against you as far as NIH and the Federal Government is concerned but not necessarily against other defendants who do not come within the removal statute.

Mr. Woodward: --I would have no objection to--

Unknown Speaker: You would have no problem with that?

Mr. Woodward: --I would have no problem with that, but that is a very large assumption.

Unknown Speaker: Well, are you sure that that assumption is not correct?

Mr. Woodward: I'm sure that assumption is not correct.

Unknown Speaker: You think that when a Federal court upon removal dismisses the case for lack of standing of one of the... of one of the parties, the suit cannot be rebrought in State court against the other parties, absent the one who didn't have standing?

Mr. Woodward: That's not the premise with which I'm disagreeing.

You said, assuming that removal was permissible in this case, and I do not assume that removal in this case--

Unknown Speaker: But that's a totally different argument.

I was responding to your claim that you... you have been done in by the removal because the Federal Government would have no interest in the standing of these other people.

It doesn't.

The only consequence I believe of this dismissal is that the Federal officers and the Federal agencies cannot resued in State court.

You could... you could resue anybody else.

Mr. Woodward: --I agree with that.

Unknown Speaker: Okay.

Mr. Woodward: But to get to the basic question of whether or not section 1442(a) does permit removal by a Federal agency... I believe that the Court yesterday announced the rule that decides this case in West Virginia University Hospitals v. Casey when it says that the best evidence of congressional purpose is the statutory text adopted by both Houses of Congress.

And goes on to say, whereas here the statute's language was plain, the sole function of the court is to enforce it according to its terms.

In this case, the statutory language is plain.

It was perfectly clear to me and to a majority of courts until it was translated from the English into a foreign legalese by these respondents.

The statute is entitled, Federal Officers Sued or Prosecuted.

It commences by saying,

"a civil action against any of the following persons may be removed by them. "

As respondents have conceded quite candidly in their brief, "persons" is normally read to exclude reference to the sovereign.

That's the first obstacle they face.

Then it goes on to say,

"any officer of the United States or any agency thereof. "

comma... and the punctuation serves a useful function in this statute.

It does not say as they would read it,

"any officer of the United States, or any agency thereof, or person acting under him. "

It's to be read together...

"Any officer of the United States or any agency thereof, or person acting under him. "

NIH tells us that "him" can sometimes mean "it", "them", the "sovereign".

That's certainly true, but him in ordinary English means him.

For any act of... under collor of such office--

Unknown Speaker: Assume it means "her", too, doesn't it?

Mr. Woodward: --Yes, Your Honor, to be sure.

[Laughter]

Unknown Speaker: I mean if "her", then maybe "it".

Mr. Woodward: Maybe "it", and in some cases, "it".

The problem that they confronted in this case is that in their masterful brief, they have cited to this Court cases that say, you may disregard the statutory title.

They have cited cases that say you may disregard the syntax.

They have cited cases that say you may disregard the normal reading of "person" or you may disregard the meaning of the word "him".

However, they have cited to not a single case that says you may disregard the statutory title and the common usage of "person" and the common meaning of "him" and the language of the statute and the legislative history and the majority of the courts who have properly read this statute, in order to embark upon a protectionist fervor of their own which was not shared by Congress when it enacted this statute.

Unknown Speaker: How far back does this statute goes, Ms. Woodward?

Do... do you know?

I... it--

Mr. Woodward: It goes way back.

Unknown Speaker: --It... you know in the bad old days, you... you couldn't... there was no question of suing the agency or suing the United States in its own name.

The only way you got at them was by suing a person for mandamus.

The theory was that the person was... if acting beyond his authority... was not acting as the sovereign.

Mr. Woodward: That--

Unknown Speaker: So, you know, once upon a time when this was drafted, might it not be that... that the anticipated effect of it was exactly what the other side is arguing for today?

Mr. Woodward: --No, Your Honor.

Because by 1948 when this judiciary code was passed into law, there were many, many, many agencies.

The Burr case had been decided in 1940.

Keifer & Keifer had been decided in 1939.

The sue and be sued clauses had already been construed by the Court to permit the direct right of action against agencies.

Unknown Speaker: What kind of agencies... I mean, other things other than the Tennessee Valley Authority and the quasi-private agencies?

I'm talking about agencies... real agencies... like the Internal Revenue Service, you know.

The days when I was in law school, all the Helvering cases... I heard somebody refer once to the Helvering case.

As you know, there were hundreds of Helvering cases.

Mr. Woodward: Many, many, many real agencies have been created during the period immediately prior to the passage of this act.

This was the New Deal and Professor Davis--

Unknown Speaker: And sued... and sued as such.

Sued as such.

Mr. Woodward: --Sued as such under Reifer and Burr.

And Congress clearly averted to the fact that agencies would be in court as litigants, because listen to what they did in another section of the judicial code, enacted in the same year.

They held, without any particular difficulty in the English language, at 28 U.S.C. section 1345,

"with respect to actions brought by agencies, the district court shall have original jurisdiction of all actions commenced by the United States or by any agency or officer thereof. "

What could be simpler?

And yet respondents would have you believe that when it came to enacting a section placed only a few statutory provisions beyond, Congress was tripping over its tongue and did not know how to speak.

But Congress's intent is clear enough, not only in the language of the statute, but in the revisor's notes when it states very briefly, this statute had gone back a long way... back to reconstruction and even before.

There had been in times of national crisis very limited statutes enacted to protect officers against actions in hostile State courts starting with the New England States' resistance to the trade embargo against England, and again during the Civil Way, other statutes.

In 1948, Congress decided to broaden that protection to all officers, but it explained in the revisor's notes,

"The revised subsection (a)(1) is extended to apply to all officers and employees of the United States or any agency thereof. "

Respondents read this language to mirror the same ambiguity that they attempt to read into the language of the statute.

But there are important distinctions in the notes and the statutory language.

The statutory language refers to a right of removal by any officer of the United States or any agent thereof or person acting under him.

Here they explain exactly what the change is.

We're now broadening this to apply to all officers and employees of the United States or any agency thereof... not all agencies... all officers.

This note is important, too, because respondents would take either of two routes to find a right of agency removal.

The first is by reading ambiguity into the statutory language.

And the second is by construing this language "or person acting under him" to mean anyone... any agency, any entity, any anything... operating under any officer of the United States, tracing all the way up to the President of the United States.

And the reason why it is very important for this Court to attend to that argument is that respondents, NIH, Tulane, and IBR are... they all contend that Tulane also would be a person acting under an officer and entitled to a move to Federal court.

By that construction, if Tulane is an entity because it has the NIH's vague approval of what it's doing in this case, then anyone who has spent $1 of Federal money or has the approval of any Federal agency or officer for its actions would be entitled to a move to Federal court.

And in that case, the Mesa requirement that there be a Federal defense poses no obstacle at all because all of these respondents say that they do indeed have a Federal defense.

And that Federal defense is sovereign immunity because what they contend we are attempting to do here is interfere with the actions of the Federal Government which have been expressed in some terms about which we are not entitled to receive discovery but which they say... and this Court is instructed to accept as fact... have something to do with science which is not to be tampered with by us--

Unknown Speaker: Well, now you do concede, I suppose, that the word "person" has a broader meaning than just an individual?

Mr. Woodward: --Your Honor, it can, but to construe "person" to include the sovereign as they have done, is something more.

And referring back to the statutory notes, the revisors explained that this was intended to apply to all officers and employees.

Tulane is not an employee.

The wire tappers in the Camacho case who were sued for a violation of Puerto Rico law were not officers or employees either.

There is almost no limit to the number of cases that could be brought in Federal court if this is given so broad a construction.

And what it essentially works is an end run against the long-established principle that issues of Federal immunity can be capably decided in State court.

Unknown Speaker: Of course you're really making two arguments with respect to Tulane.

One is that it's not a person in the individual sense.

And a quite separate one that "acting under" means that you be an actual employee.

Mr. Woodward: Yes, Your Honor.

Unknown Speaker: Is that what you're saying?

Mr. Woodward: I just think that's far too broad.

And that's... that's a breadth of construction that has been applied to this statute by many, many courts.

And it has been applied drawing on the same language that was handed down from Tennessee v. Davis that is repeated at every place in respondents' brief that they could find a place to put it.

The language about hostile State courts, about what is to become of the State government if it is placed at the mercy of hostile State courts.

That language has no real currency today.

And it's clear also from notes in the revisions to the judiciary--

Unknown Speaker: What do you mean when you say that language has no real currency today?

Mr. Woodward: --That State courts are hostile to the Federal Government and that Federal defenses cannot be safely entrusted to the State courts.

I do not believe that--

Unknown Speaker: Well, then if Congress were to follow your view, it should repeal the removal statute I suppose?

Mr. Woodward: --No, Your Honor, because I think that there is a distinction to be drawn here between an officer and an agency.

And I think it's a logical extension.

Unknown Speaker: Yes, but surely the hostility of State courts doesn't depend on whether it's an officer or the Federal officer before them... or a Federal agency before them.

Mr. Woodward: I believe that that part of the removal statute is somewhat antiquated.

To me it is.

But that is a decision that Congress has made, and the question here is whether it's going to be extended.

First of all, it can't be extended judicially because Congress has not expressed any intention to do that.

And to the contrary, Congress clearly demonstrated in 1948 that it was not operating from these sorts of protectionist notions.

In the revisions, in the revisors' notes to section 1441, Congress explained... in explaining its having dropped from the removal statute the right to remove in all diversity cases.

Unknown Speaker: Who is this revisor?

You say Congress explained.

Who... who wrote these revisors' notes?

Mr. Woodward: This is in the House report, volume 8, number 308, at page A133.

Unknown Speaker: Is that a reproduction within the House report of the notes by whom?

Mr. Woodward: The revisors' notes.

Unknown Speaker: Who is the revisor then?

Mr. Woodward: Your Honor, I don't know who the revisor is.

Unknown Speaker: Does it say we agree with all of these notes?

Mr. Woodward: These are very brief.

I looked at them in the Library of Congress.

They're entitled, Revisors' Notes, and that's the citation where they can be found.

They're also cited in the parties' briefs.

In that House report it says,

"All the provisions with reference to removal of controversies between citizens of different States because of inability from prejudice or local influence to obtain justice, have been discarded. "

"These provisions, borne of the bitter sectional feelings engendered by the Civil War and the Reconstruction period have no place in the jurisprudence of a nation since united by three wars against foreign powers. "

"Indeed, the practice of removal prejudice or local influence has not been much employed in recent years. "

And those remarks have equal validity in connection with this case.

With the Court's permission, I would like to reserve my remaining time for rebuttal.

Unknown Speaker: Very well, Ms. Woodward.

Mr. Seamon, we'll hear now from you.

Argument of Richard H. Seamon

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

Section 1442(a)(1) of title 28 authorizes removal by, quote,

"any officer of the United States and any agency thereof or person acting under him for any act under color of such office. "

NIH was authorized to remove this action both because it is an agency of the United States, and in the alternative, because it is a person acting under a Federal officer, namely the Director of NIH as well as the Secretary of Health and Human Services.

We accordingly urge the Court to affirm the judgment below.

NIH was authorized to remove this case as a Federal agency under the first clause of section 1342(a)(1).

We read the first clause to authorize removal either by an officer of the United States or an agency of the United States.

We recognize that our reading of the first clause is not the only plausible one.

The clause could be read, as petitioners do, to allow removal by officers of the United States and officers of agencies of the United States.

The problem with this reading is that all officers of agencies of the United States are officers of the United States.

Petitioners' reading of the first clause therefore renders the phrase "any agency thereof" superfluous.

We recognize--

Unknown Speaker: Is that clear?

You know, officer... officer of the United States has a quite technical meaning in the Constitution and for many purposes within Federal law.

It seems to me you might well be an officer of let's say the TBA or some Federal corporation that is called an agency of the United States without being, in common usage, an officer of the United States.

Mr. Seamon: --This Court hasn't often addressed the phrase "officer of the United States".

But one case in which it did is United States v. Handy, in 124 U.S. And there it recognized that there is the strict constitutional meaning of officer of the United States which is relatively restricted.

But there's also a more popular signification of the term and that can mean officers of various lower departments, other than the departments in the executive branch.

Unknown Speaker: But at the time this was first... this language was first employed, isn't it reasonable to assume that that narrow meaning of the word, "officer of the United States", was intended in this language?

Mr. Seamon: It's--

Unknown Speaker: And that would certainly explain the language of the statute or agency thereof.

Mr. Seamon: --It's plausible, and we concede that.

But in a way that's beside the point of the fact that petitioners have to resort to speculation about what might have been on Congress' mind when it drafted this statute.

The extent that they have to kind of read Congress' mind, they can't lay a claim to the plain meaning of the statute, which is what they purport to do.

Unknown Speaker: Well, the language was... has been on the books a long time... that language.

And perhaps it's the more natural reading of the language.

Mr. Seamon: Actually, in some of the early... "officers of the United States" has been a phrase employed from early times, although in the removal provisions that was not the invariable phrase.

Some of the earlier provisions talk about officers acting under the revenue laws.

They speak in terms of the laws that the officers are carrying out.

I believe that "officers of the United States" was relatively recent vintage in the context of the broader history of these removal provisions.

Unknown Speaker: Well, isn't plausible and a permissible inference for this Court to make that Congress was very careful in drafting the statute to exclude agency removal as you now argue, because they were concerned that there might have been a construction of the statute that would be an implied waiver of sovereign immunity?

Mr. Seamon: That's also plausible, although petitioners haven't raised that argument.

Our point is that there are a lot of plausible explanations about what may have been on Congress' mind when it drafted this language.

But the point is that it's all speculation.

And petitioners couch their whole argument--

Unknown Speaker: Well, you say it's speculation, but sovereign immunity is a well-documented, fundamental doctrine of our jurisprudence.

And if we see that drafting the statute the way that you suggest might have raised serious questions about sovereign immunity, it seems to me that's a perfectly legitimate and logical way to interpret the statute, quite consistent with our jurisprudence that we begin with the language of the statute.

Mr. Seamon: --We concede that the statutory language is... can be read to draw some kind of distinction.

Our point is more limited which is that it is not the plain meaning of the statute.

Petitioners' reading is not compelled under the language alone.

You have to resort among other things to the purpose of the statute and its legislative history to discern what Congress' intent is.

And when you have to go those further stages, our position is that our reading of the... both clauses of 1442(a)(1) is just as reasonable as petitioners' is.

They cannot lay claim to claiming--

Unknown Speaker: Do you take the position that the notion that the category of officers of the United States and the category of officers of agencies are identical with one another is plain from the face of the statute?

Mr. Seamon: --No.

Unknown Speaker: How do you... how... what is it that we look to to determine that that's what Congress... that Congress thought those two categories were co-extensive?

Mr. Seamon: First, let me clarify.

Our position is that officers of agencies is a subset, wholly included within the larger set officers of the United States.

Unknown Speaker: Oh, all right.

You're right.

I see.

But that everyone in that subset would be an officer of the United States?

Mr. Seamon: Yes, that's correct.

Unknown Speaker: Is that... is that point plain from the meaning... from the text of the statute?

Mr. Seamon: We believe it is among other reasons because subsections (a)(2) through (a)(4) speak in terms of officers of the House and Congress, officers of the court.

And as this Court recognized in Mesa v. Arizona, these are... are essentially redundant provisions.

They are now encompassed within the broader meaning of subsection (a)(1).

In other words, we would say officers of the court are officers of the United States, officers of the--

Unknown Speaker: By that do you include all lawyers who are members of the bar of the court?

Mr. Seamon: --I'm sorry?

Unknown Speaker: Do you include all lawyers who are members of the bar of the court when you talk about officers of the court?

Mr. Seamon: I believe that members of the bar would be officers of the court.

They're denominated as such when they--

Unknown Speaker: Are they officers of the United States?

Mr. Seamon: --It would depend on the circumstances.

Unknown Speaker: Well, can we tell from the face of the statute?

Mr. Seamon: We can tell from the face of the statute that officers of agencies in our view are officers of the United States.

Again, our point on--

Unknown Speaker: Mr. Seamon, before we get off of sovereign immunity, what Justice Kennedy was asking about, did the Government raise sovereign immunity as a defense in the State court?

Mr. Seamon: --We didn't raise sovereign immunity as a defense in the State court primarily because when... when you are sued in State court, as NIH was, the first thing you have to do essentially is remove.

If you're going to remove, you have only 30 days.

And that has to be the first thing you do.

So if it's not raised until the case was--

Unknown Speaker: But you don't think it was waived?

Mr. Seamon: --In no sense.

I--

Unknown Speaker: Because if it was waived, I assume there's no Federal question here.

Well, you don't plead... you don't plead sovereign... you don't plead when you're removing.

You remove rather than plead.

Mr. Seamon: --It's the filing of a petition and that effects the removal of the case.

At the district court level, NIH filed motions to dismiss that included a defense based on sovereign immunity as well as the supremacy clause, and we made a preemption argument in the district court as well.

Unknown Speaker: When... after removal if there's no jurisdiction, isn't... doesn't the statute require that there be a remand rather than a dismissal?

Mr. Seamon: We don't believe that remand was appropriate in this case, because petitioners lack standing.

The Fifth Circuit, having determined that the case was properly removed, also held that petitioners lacked standing.

Unknown Speaker: Is that the same as subject matter jurisdiction... lacking standing?

Because the statute says if it appears at any time that subject matter jurisdiction is lacking, the case shall be remanded not dismissed.

Mr. Seamon: That's correct.

That's the language of section 1447(c).

Under these circumstances, plausibly the court could have remanded but it would have been futile because petitioners had lost.

It had been established that NIH had a right to be sued in Federal court.

They had a right to be sued by plaintiffs with... petitioners with article III standing.

Petitioners didn't have article III standing.

They lost.

The case was over.

They couldn't have done anything in State court had the case been remanded to that... to that... to that court.

We note that the--

Unknown Speaker: Well, presumably they still had a cause of action against Tulane, and they also say that the rules for standing in State court are not as strict as article III standing.

Mr. Seamon: --We would take the position that they cannot refile this suit simply omitting NIH and any other Federal entity from their... from their complaint and their allegations.

For one thing, I don't see how they would draft a complaint without reference to the Federal entities in this case.

Unknown Speaker: Well, why aren't they entitled to... to sue NIH if there's just... if the only ground is no standing?

Let's assume that all that was... the only thing the district court ruled on was standing.

Mr. Seamon: That... that would be... if the Fifth Circuit, having ruled on both standing and removal, means that they can't NIH either in Federal court or State court.

That would be our position.

And just to return to a point I was making just a moment ago, our position would be that with regard to the question of the disposition... the treatment of the monkeys... NIH or at least its director is an indispensable party to any proceedings.

Although theoretically petitioners could return to State court and file a new suit and this time omit any reference to NIH, NIH or directors would have to be included in that suit, and in fact it would seek to intervene.

Unknown Speaker: But that... that's a matter of State law, isn't it?

Who is an indispensable party as a defendant in a Louisiana State lawsuit.

Mr. Seamon: Yes, that's correct.

And Louisiana appears to follow essentially the same doctrine as the Federal courts do.

Unknown Speaker: Mr. Seamon, may I go back to the text for a moment on a phrase that hasn't been discussed.

That is at the point at which subsection 1 moves from a description of persons to a description of the subject matter of the action.

And the phrase is... that I'm concerned with... is

"for any act under color of such office. "

Would you agree that that phrase would refer only to the acts of an officer rather than the acts taken in the name of an agency?

Mr. Seamon: No, we wouldn't agree.

We would say that every agency, just like every officer, has an office, and the office is defined by the agency--

Unknown Speaker: The agency acts under color in the same sense that an individual acts under color?

Mr. Seamon: --That's right, and to the extent that it exceeds its officers defined by statute, it is... it is subject to suit.

So, again, we do not agree that office only refer to the officer, but also the agency.

And in part I am relying on Black's Law Dictionary for that.

Unknown Speaker: Do you have any examples of identical or substantially identical usage in other statutes that... that has been held to refer to agencies rather than to officers acting under color?

Mr. Seamon: I am not aware of any.

Unknown Speaker: So that so far as you know, this would... this would be a unique example of that usage, if we were to agree with you?

Mr. Seamon: Again, as far as I know, that... that's correct.

I would just point out that the Constitution speaks in terms of the office of the President.

But the... but the definition of "office" has broader implications as well.

Black's Law Dictionary, at any rate, defines "office" without regard to the individuals... officers.

It has a broader meaning and it means... it's defined as a right and corresponding duty to exercise of public trust.

I'm reading selectively here, of course.

Unknown Speaker: But how... I don't want to cut you off, but how does that relate directly to the question whether the concept of acting under color of office is a concept which can be associated with the agency rather than with the individual?

Mr. Seamon: Our position would be that an agency... any time an agency takes or purports to be an agency action, such as the promulgation of regulations [inaudible] informal adjudication, that it is acting under the color of its office.

It is acting... and that means within the parameters of its statutes creating its mandate.

Again, we believe that the first clause can be plausibly read in more than one way.

And our limited point about the competing interpretations before the Court is simply that petitioners can't lay claim to the plain meaning of the text because of the problem of officers of agencies in--

Unknown Speaker: Well, suppose we don't agree with your reading of this officer or agency and we have to look at the "person" clause.

Now, would you explain to me how you define "person" under this statute?

Who does that include?

Mr. Seamon: --We define person to include natural persons, but not only natural persons, also agencies and corporations and associations.

Unknown Speaker: And in this case... Tulane as well?

Mr. Seamon: Yes, that's correct.

We believe that in the circumstances of this case, Tulane would be entitled to remove and indeed intends to remove if this case is remanded as a person acting under a Federal officer and specifically the acting director of NIH who signed the letter of agreement with Tulane.

Unknown Speaker: So you interpret the word "person" here to include the sovereign?

Mr. Seamon: Yes, that's correct.

And that is not a remarkable reading, as we've pointed out in our brief.

On many occasions, this Court has interpreted the word person to include sovereign bodies... State corporations, States themselves.

And lower courts have done the same thing.

In connection with this, we point out that the word persons also used in the subsection (a)(2) where it plainly can't be limited to natural persons.

Subsection (a)(2) refers to persons holding land under a Federal officer.

And we believe it is plain on the... on the face of the statute that the word (a)(2) clearly includes corporations and other entities capable of holding property.

And our position is that the word person can't have a more narrower meaning for (a)(1) than it does for (a)(2), where it's clearly not limited to individuals as petitioners argue.

We do believe that it's consistent, not withstanding petitioners' argument to the contrary, for entities like Tulane to remove as persons acting under a Federal officer.

In connection with this, it's helpful to consider the court's opinion in The Mayor v. Cooper.

It's a very old case.

It's in 73 U.S. But in that case, the action was... concerned the governing body of Nashville, Tennessee.

They clearly were not Federal employees, but they were acting under the direction of a military officer.

This was a case that arose in the wake of the Civil War.

We think it's perfectly consistent with the spirit of The Mayor versus Cooper, although a concern in earlier provision to interpret section 1442(a) not to be limited to Federal employees but also to include their employers--

Unknown Speaker: Well, you say that... what is the connection between Tulane and the United States that would justify Tulane in removing here?

Mr. Seamon: --There are two justifications, I'm sorry to say only one of which is in the record.

One is the letter of agreement between the acting director of Tulane and Tulane University's medical school that provides for Tulane's acting as an assistant to NIH.

Unknown Speaker: The acting director of NIH and to... a letter from the acting director of NIH to Tulane?

Mr. Seamon: That's correct.

It was also signed by the chancellor of the medical school who is... oversees the Delta Center.

There's been subsequent correspondence, and I'm informed that there is a more formal contract between NIH and Tulane.

It works out the details of reimbursement and care of the monkeys.

Unknown Speaker: Did you say that makes Tulane a person acting under him for purposes of the removal statute?

Mr. Seamon: Yes, that's correct.

We would go on to--

Unknown Speaker: Him in that case would be what?

NIH or the director of NIH... which one?

Mr. Seamon: --Under our reading it could be... it could be NIH, but it clearly also is the acting director.

He signed the letter that was also signed by the chancellor.

Unknown Speaker: May I ask, Mr. Seamon, just to get it straight in my mind?

The Fifth Circuit, which holds that agencies can remove, doesn't rely on this theory, does it?

Doesn't it rely on the theory that you just take the comma out in the plain reading of the statute?

That an agency can remove because it's an agency not because it's a person acting on behalf of an officer?

Mr. Seamon: That's correct.

Unknown Speaker: So we don't whether the Fifth Circuit would accept your rationale on the Tulane argument.

Mr. Seamon: That's correct.

Other courts have proceeded under the... under the "person acting under him" clause to include agencies.

Actually, one earlier Fifth Circuit decision concerning the National Bank of Texas from the Fifth Circuit relied on that clause.

But it appears that the... presently Fifth Circuit precedent relies on the first.

Unknown Speaker: Could I ask you, the court of appeals decided both the standing question on the removal question?

Mr. Seamon: Yes, that's right.

Unknown Speaker: And decided the standing question first?

Mr. Seamon: It... the standing discussion is first in its opinion.

Unknown Speaker: Yes, but... but do you agree that... that if the court of appeals was right about standing, it nevertheless could reach the removal question?

Mr. Seamon: I'm sorry.

I'm misunderstanding your question.

Unknown Speaker: Well, do you agree that the... with the court of appeals' decision that there was no standing with these plaintiffs?

Mr. Seamon: Oh, certainly so.

As we discussed in--

Unknown Speaker: All right, if you agree with that, do you then agree that the... that it was proper to reach this... the removal question?

Mr. Seamon: --Absolutely.

Unknown Speaker: Because I take it an officer who's entitled to remove... let's assume that there is an officer here that was entitled to remove... that officer is entitled to litigate in the Federal court.

Mr. Seamon: That's right.

Unknown Speaker: But only against a plaintiff who has standing.

Mr. Seamon: That's right.

Unknown Speaker: So that the... if the district court finds that there is no standing, the district court should dismiss and not remand.

Mr. Seamon: That's right.

Unknown Speaker: And to let the suit go on in the State court, even though the plaintiffs might have standing there.

Mr. Seamon: That's right.

That's why we believe the Fifth Circuit disposed of this case properly when it dismissed with prejudice.

Petitioners have no right to be back in State court suing NIH or any of the other defendants presently named in this case.

And I would point out that, although petitioners talk about the injustice that seems to have been visited on them, it presupposes the question that's before the court.

If NIH had a right to remove this case, it had a right to be sued by petitioners with article III standing.

Congress made the judgment in section 1442(a) that officers... and we would submit agencies... have a right to go to Federal court rather than to have... rather than to be sued in State court for intentional infliction of emotional distress.

Unknown Speaker: The standing... the question here... it's a jurisdictional question I guess.

Mr. Seamon: Yes, that's correct.

Unknown Speaker: What kind of a jurisdictional question is it?

Mr. Seamon: I think it goes to subject matter jurisdiction.

Unknown Speaker: Well, what about 1447(c)?

Mr. Seamon: We would--

Unknown Speaker: It says that there's a finding... if at any time it appears that district court lacks subject matter jurisdiction, the case should be remanded.

Mr. Seamon: --We believe that the case should be remanded unless it would be futile to do so.

And that this is one of those limited circumstances when remand would be futile because petitioners don't have a right to do anything in State court.

We recognize that in this area, too, there is some tension with the language.

We take the position that the First Circuit did, which addressed this question in a case entitled, Maine v. Maine Commissioner of Human Resources.

I'm not sure it's cited in any of the briefs.

It's a recent case, 876 F. 2d.

And they held precisely on the position we're taking that when remand would clearly be futile--

Unknown Speaker: Well, subject matter jurisdiction doesn't ordinarily include the concept of standing, does it, Mr. Seamon?

Don't we ordinarily think of subject matter jurisdiction as those provisions of title 28 which set out the different bases for a Federal jurisdiction: 1331, 1332, et cetera?

Mr. Seamon: --It includes those, but it also includes defects in standing.

Unknown Speaker: What's your authority for that proposition?

Mr. Seamon: No authority immediately comes to mind.

Unknown Speaker: Then why do you assert it?

Mr. Seamon: Because my experience is that you would seek to dismiss a case on standing grounds under 12... rule 12(b)(6).

It's not--

Unknown Speaker: Which would be based on subject matter jurisdiction and not a lack of... so you say motions are commonly made under 12(b)(6) which goes to subject matter jurisdiction.

Those motions are based on lack of standing?

Mr. Seamon: --It occurs to me that there is authority in terms of... no, I'm sorry, no case is coming to mind.

But that's correct that standing goes to subject matter jurisdiction as do other defenses raised in this case such as sovereign immunity and the fact that NIH was--

Unknown Speaker: Sovereign immunity goes to subject matter jurisdiction?

I thought sovereign immunity had to be pleaded if your defending on the merits?

Mr. Seamon: --We take the position that sovereign immunity also goes to jurisdiction, so--

Unknown Speaker: Well, it may... it may go to jurisdiction in some senses, but the word "subject matter jurisdiction" is a fairly technical concept.

Mr. Seamon: --That's true.

And more generally jurisdiction is a difficult concept because there are lots of different kinds of jurisdiction.

Unknown Speaker: Well, of course the First Circuit must have thought it was subject matter jurisdiction to go through all those contortions.

Mr. Seamon: That's... that's correct.

Unknown Speaker: 12(b)(6) of course is also a very understated claim on which relief can be granted.

Mr. Seamon: That's correct.

And in a way, for purposes of deciding the issue before this Court, it just suffices that clearly NIH's defenses raised in the district court and again in the court of appeals were clearly colorable Federal defenses for purposes of Mesa.

The merits, you know, were not litigated before the court of appeals, although they were raised there.

But they don't have to be.

As the court indicated in Willingham, you do not have to win your immunity defense in order to have the right to remove.

The question here is NIH's right to be in Federal court to litigate these defenses.

Unknown Speaker: May I ask you another question about 1447(c) which seems to require remand rather than dismissal?

You say there's a futility exception... that the litigation in the State court would be futile.

Does the... is the question of whether it would be futile a question of State law or Federal law?

Mr. Seamon: I have not considered that question before.

Unknown Speaker: It seems to me if it's a question of State law that would be a reason to remand and let the State court decide it.

And some of the things you said suggest to me that might be the case.

Mr. Seamon: That may well be.

Unknown Speaker: I can see why if you said for some reason there are no... there are no defendants except Federal defendants who have properly pleaded sovereign immunity or something like that, that it's perfectly clear as a matter of Federal that the State action couldn't go forward and then your futility exceptancies make a lot of sense.

I'm not sure on the facts of this case... I don't know the case you cited, of course... that your argument is really as strong.

Mr. Seamon: It may be... it may be appropriate under certain circumstances to remand to State court, for example, to determine whether a Federal entity is an indispensable party under the State law.

It's... it's a... it is a difficult question.

I don't believe it's necessarily before the Court because Federal rule 81(c) also provides that the Federal rules govern in removed cases.

So there are some technical and admittedly difficult questions where the State rules end and Federal rules pick up.

In my remaining time I would just like to make a couple of points.

It seems to me that in many ways, although beyond the difficult questions of jurisdiction, the courts shouldn't forget about the context in which this case has arisen.

Petitioners named NIH as the only Federal defendant in this case and that was in paragraph 4 of their complaint, which begins on page 30 of the petition.

In paragraph 6 they expressly ask for an injunction against both NIH, its officers, agents, employees, and representatives.

This is really a suit against both officers and the agency.

And it simply makes no sense to hold that merely because of the way they pleaded this case that NIH can't remove.

We doubt and we think it's absurd to attribute that kind of intention to Congress.

Unknown Speaker: Mr. Seamon, suppose you get a judgment from a State court against an agency as such, not an individual... not an officer... but an agency as such.

How do you execute upon that judgment without the assistance of a Federal court?

Mr. Seamon: I'm not sure that... I think that, assuming that you were willing to proceed as petitioners have in this case, is that you simply... you file to execute under whatever applicable State laws there are.

There's no statute authorizing suit against NIH in its own name, and yet petitioners do that.

Unknown Speaker: You move against the Treasury... the Federal Treasury?

And the Federal Treasury says, no, I won't pay.

What do you... do you get a mandamus from the State court?

What I'm driving at is maybe there's no need to have the removal in the case of an agency as such, although there is in the case of an officer.

Mr. Seamon: There is in the... with respect to agencies entitled to sue and be sued in State court and in own name.

I mean, I think with respect to agencies like NIH in a sense there's no problem unless you get plaintiffs like petitioners who name agencies even thought they're clearly not authorized to do so.

But there's another category of agencies with... who are subject to these sue and be sued clause.

And as we discussed in their brief... our brief, there are also these environmental waivers that present problems if the agency is held not entitled to remove.

Unknown Speaker: May a State court issue an injunction against a Federal agency?

Mr. Seamon: I'm sorry?

Unknown Speaker: May a State court issue an injunction against a Federal agency?

Mr. Seamon: Our position is clearly it would not be entitled to do so, although we... it's quite plausible that had NIH been served as--

Unknown Speaker: Is there... meaning... what is that Tarbell's case?

Mr. Seamon: --I think that would stand for that proposition.

Unknown Speaker: Thank you, Mr. Seamon.

Ms. Woodward, do you have rebuttal?

You have 4 minutes remaining.

Rebuttal of Margaret E. Woodward

Mr. Woodward: Thank you, Your Honor.

Justice Kennedy, I do not believe Tarbell's case stands for that proposition.

There is a very fine law review article published in the 1966 Yale Law Journal that explains that Tarbell's case cannot be extended to so hold and that would be our position in this case.

But I think we're a long way from that discussion.

And on the subject of remand, I think this Court should also take a look at the new judiciary reform act which makes some modest adjustments to section 1441(c) and strikes out the language,

"remand all matters not otherwise within its original jurisdiction. "

and inserts in lieu thereof,

"may remand all matters in which State law predominates. "

That may have been enacted to get around the problems confronted by this Court in Carnegie Mellon University v. Cohelm.

But whether or not I think it was intended to do that, I think it does have some direct application to--

Unknown Speaker: Does your brief cite that?

Mr. Woodward: --It does not, Your Honor.

I only just discovered this.

It's 104, statute 5114.

Unknown Speaker: Would you please file copies of that with the clerk [inaudible] the court?

Mr. Woodward: I'd be glad to.

Unknown Speaker: Thank you.

Mr. Woodward: And to revisit the question that you addressed, Mr. Chief Justice, about Tulane's interest in this case.

It's all very interesting that there is an agreement... a letter agreement... between NIH and Tulane relating to the issue of custody of these monkeys.

But that skips a very important first step, and that is what is NIH's interest in these monkeys other than a political interest.

NIH is not the owner of these monkeys.

IBR is the owner of these monkeys.

Tulane has physical custody of the monkeys.

NIH initially urged to the district court that it's custody--

Unknown Speaker: Perhaps you should have thought of that before you filed your lawsuit naming them as a defendant.

Mr. Woodward: --Your Honor, we thought they were an interested party and we named them as an interested party.

It was NIH which jumped in with both feet, removed to Federal court, accepted service and suggested to the district court that it would accept a TRO issued against it, the NIH, which I was even requesting because I was satisfied that the temporary restraining order issued against Tulane gave us all the protection that we were seeking in this case.

The State court never issued an injunction against the NIH.

The NIH offered to be sued, to be enjoined, and it was over our opposition that we did not believe that they had that kind of interest in this case.

And I find it very peculiar that NIH should try to trump us in standing when its own interest has been questioned by the court and has never been determined.

That's the fundamental injustice.

And I also think that it's fundamentally unfair to read these statutes broadly to confer Federal jurisdiction.

As this Court is well aware Federal courts are, by origin and design, courts of limited jurisdiction.

And it is not only unfair but unconstitutional for the Federal courts to exercise jurisdiction and in an area where State law predominates, State issues are paramount, and the Federal interest has not even been tested.

For article III standing to apply so that the Federal interest cannot even be plumbed in the district court to which they have removed is not an appropriate exercise of jurisdiction.

Unknown Speaker: Thank you, Ms. Woodward.

Mr. Woodward: Thank you, Your Honor.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The OYEZ Project

Featured:

Ellis v. Dyson - Oral Argument

Thu, 23 Aug 2012 18:25:44 +0000

Case:

Ellis v. Dyson

Media File:

73-130_19741112-argument.mp3

Related Transcript:

73-130_19741112-argument

Transcript:

Argument of Burt Neuborne

Chief Justice Warren E. Burger: We'll hear arguments next in 73-130, Ellis against Dyson.

Mr. Neuborne you may proceed whenever you're ready.

Mr. Burt Neuborne: Mr. Chief Justice and may it please the Court.

My name is Bert Neuborne, I represent the petitioners herein Tom Ellis, a white college student at Eastville College in Dallas, Texas and Robert Love.

A black graduate student at the Southern Methodist University School of Music.

Petitioners were arrested at 2 a.m. on January 18, 1972 under a Dallas loitering ordinance while driving in Tom Ellis' car in the suburb of Dallas.

At the time of their arrest, petitioners were attempting to determine which of several possible apartments that Mr. Love had looked at during the day would be most appropriate for Mr. Love to rent.

Apart from the mere presence in the automobile at 2 o'clock in the morning in Dallas, Texas, there were no signs of criminal activity.

And obviously petitioners' arrest in the vague and overbroad Dallas ordinance upon which it was based raised serious constitutional questions under this Court's decision in Papachristou versus Jacksonville.

Petitioners initially sought to raise the constitutional questions posed by the Dallas ordinance in the Texas state courts.

They first brought an application for discretionary writ of prohibition in the Texas Court of Criminal Appeals on February 14, 1972 and an application for discretionary writ was based on the facial unconstitutionality of the Dallas loitering ordinance.

Justice Potter Stewart: And the purpose of that application was to prevent there being tried at all or through it, was that it or --?

Mr. Burt Neuborne: The purpose was to provide that the Texas courts with an opportunity to pass on the constitutional question.

Justice Potter Stewart: Yes, this is pretrial?

Mr. Burt Neuborne: Pretrial, yes sir.

Justice Potter Stewart: And then what they asked for was that they not be tried at all because the statute or the ordinance was unconstitutional?

Mr. Burt Neuborne: Was facially unconstitutional, yes sir.

Justice Potter Stewart: Incidentally, what was the form of the charge?

Mr. Burt Neuborne: The form -- the charge I believe was an information for loitering under the Dallas ordinance.

It is the description of the arrest and the officer's description of the arrest are set forth in the appendix in the handwriting of the officers and is before the Court.

Justice William J. Brennan: Mr. Neuborne, are the petitioners here still living in Dallas?

Mr. Burt Neuborne: Your Honor, we have been unable to ascertain at the present time the whereabouts of the petitioners.

We have made preliminary attempts to trace them through their parents, and those preliminary attempts are thus far been unsuccessful although I must represent to the Court that the attempts have been preliminary.

We suggest to the Court that under any circumstances whatever resolution of the issues posed by this appeal that on remand that the District Court just as in Steffel versus Thompson of the passage of three years renders it imperative that additional facts be taken by the District Court to determine whether or not a current case or controversy exists for two reasons.

I frankly, have no information concerning the current enforcement pattern of the Dallas ordinance nor have I sufficient information to discuss with the Court the current status of the petitioners with respect to the ordinance.

Of course, their arrests and conviction records remain and that would, I take it be unaffected by the present whereabouts.

Justice William J. Brennan: But if they are not living there, the case certainly is moot as to any possible future arrests?

Mr. Burt Neuborne: I would think that is correct sir.

I would think on remand -- under the disposition that we think the preferred disposition of this case would be a vacation of the orders below.

And a reconsideration in light of Steffel versus Thompson with a suggestion to the District Court that they undertake the same type of investigation that this Court suggested the Georgia District Court take in Steffel versus Thompson.

After presenting the discretionary writ of prohibition to the Texas Court of Criminal Appeals and having it denied on February 21st, petitioners then brought a motion -- a trial, a pretrial motion in the Dallas Municipal Court, the Corporation Court of Dallas in which they attack the facial unconstitutionality of the statute.

Chief Justice Warren E. Burger: From what you say, would it be entirely unreasonable to suggest that you are lawyers without clients at the moment?

Mr. Burt Neuborne: I think not sir.

I think there is at least --

Chief Justice Warren E. Burger: You don't know where they are?

Mr. Burt Neuborne: You don't know where they live in Dallas and you don't know whether they're disposed as to perhaps this litigation?

Your Honor, the contact which the Southern Methodist University Law Clinic has had with the clients.

The last contact which was a year ago indicated that they wish to present to continue with the litigation especially as it affects their arrest and conviction records.

I suggest to the Court had been at least as the arrest and conviction records of these young people both of whom were college students.

And who would be severely adversely prejudiced in their later lives by a conviction record such as this but there is at least a live controversy and an obligation upon the attorneys to continue to try to clear the records of these individuals and in this situation.

When the motion was dismiss in the Dallas Municipal Court the motion attacking the facial unconstitutionality of the statute, petitioners' counsel in the Municipal Court then faced a critical procedural decision.

And a procedural decision which, Your Honors, we suggest has shaped the subsequent course of this litigation.

Petitioners' counsel at that point after this pretrial motion had been dismissed had two courses of action open to him.

First, he could have followed the more traditional course, which wouldn't have been to press the unconstitutionality of the Dallas Ordinance through the Texas courts.

That course of action had three serious disabilities.

First, the Texas courts maintain a two-tier system of justice similar to the two-tier system of justice, which this Court sustained in Colten versus Kentucky two years ago.

So that the price oppressing the petitioners' claims through the Texas Court System was the risk of a substantially increase sentence upon presentation in the trial de novo to a county court.

Indeed, it would have turned out that the potential risk would have been a 20-time -- a 20-fold increase in the fine.

But secondly, and I think even more importantly in terms of a lawyer trying to do a good job for his client back in 1972, the procedural issue which the counsel for the petitioners faced in the Dallas court was he problem of issue preclusion.

If he continued to voluntarily present the constitutionality of the Dallas ordinance to the Texas state courts on a theory of issue preclusion, election of remedies, or res judicata, or some other type of theory.

He might have been deemed at that point where he did to continue to go to the merits and to reach the determination on the merits in the Dallas Municipal Court.

He might have been barred from litigating the issue further in the federal courts at some subsequent point and that is precisely, Your Honors, what happened to counsel in Thistlethwaite versus New York which is reported at 497 F.2d 339 where they followed the more traditional rule and went up through the state court system on a challenging park permit regulation on which there was only a $5 fine and for which of course habeas corpus would probably not lie in a subsequent proceeding and when they had exhausted all their state traditional remedies and sought to raised the constitutionality of the New York City park permit statute as applied to prospective distributions of leaflets in the park.

Justice Potter Stewart: Why it's complied by the judgment of a Municipal Court?

Mr. Burt Neuborne: Yes sir, I was coming.

The choice that the petitioner's counsel made at that point was to exercise an element of the offering compromise, which Your Honor mentioned in Colten versus Kentucky as a significant aspect of the two-tier system.

What petitioner's counsel did at that point was offer to plead nolo contendere which under Texas law has no collateral res judicata effect disposes of the --

Justice Potter Stewart: But why not when the -- you only did that after the motion to dismiss?

Mr. Burt Neuborne: Yes that was a pretrial motion to dismiss, Your honor but --

Justice Potter Stewart: And there was quite a general ruling on that?

Mr. Burt Neuborne: There was a ruling on the motion to dismiss.

Justice Potter Stewart: By Texas Court?

Mr. Burt Neuborne: Yes, sir but --

But the --

Justice Byron R. White: So why does it have to be --

Mr. Burt Neuborne: Well, Your Honor, we suggested that the final judgment would not have attached until the Texas Court reached the full merits of the determination on the -- as to guilt or innocence.

In other words, there was an initial preliminary motion to dismiss.

Once that motion to --

Justice Byron R. White: Mr. Neuborne, would you know whether under these circumstances the Texas Court would know the bars of this judgment in filing a civil suit a (Inaudible) suit in the Texas Court?

Mr. Burt Neuborne: My understanding sir is that the entry of the nolo contendere plea under Texas law and I am not an expert on Texas law but my understanding of Texas law is that we would have not been barred.

As a matter of fact, that is precisely the reason for the offer of the nolo contendere.

Justice Byron R. White: I know by nolo contendere but barred by the courts decision on your motion dismiss in which you presented the constitutional issue and its final result.

Mr. Burt Neuborne: Yes sir and the whole purpose of presenting that constitutional issue to Texas Court was to provide them with the option if they wish to reach the issues and if they chose not to reach the issues to at least permit the petitioners to reserve their federal rights for litigation at some future points.

And that was, as I understand it the counsel's purpose in proceeding by nolo contendere under these circumstances.

We believe Your Honor under any circumstances that even without the nolo plea that there would have been no res judicata preclusion here and of course we'll deal with that.

Justice Byron R. White: Why not Mr. Neuborne?

Mr. Burt Neuborne: We think that there are five probable -- possible reasons why res judicata should not apply.

First, the considerations of nolo but second the considerations which Your Honor adverted to in the dissent from certiorari in Mack.

And that's when 1983 actions are concerned there is at least a question as to whether or not res judicata should be applied when its full vigor to such a determination especially we're here it is being used as the functional equivalent in some part of the role that's played by federal habeas corpus in granting ultimate federal review and issues of criminal jurisprudence raising constitutional questions.

Third, we believe the that existence of the Texas two-tier system which would have missed -- which would have forced petitioners to risk a 20-fold increase in there sentence as the price of appealing from any adverse decision in the Texas Municipal Court cuts very heavily against precluding the petitioners from seeking a remedy to in federal court, while Texas under this Court's decision in Colten versus Kentucky may condition access to the Texas courts undergoing a trial de novo with the possibility of an increase sentence.

We suggest it is a far crime from that to access -- to condition access to the federal courts under the Civil Rights Act of 1871 on the same requirement that you risk a substantially more severe sentence as the price for exercising the choice of forum rights which Congress determined to give to Civil Rights Litigants.

Justice Thurgood Marshall: Do you have any word about nolo contendere in Texas, if you plead nolo contendere you're then found guilty, are you not?

Mr. Burt Neuborne: Yes sir, you are --

Justice Thurgood Marshall: And you then can be sent to prison, right?

Mr. Burt Neuborne: Yes sir, the --

Justice Thurgood Marshall: But you say it doesn't have any effect?

Mr. Burt Neuborne: No, sir.

What I meant was that it doesn't have any collateral effect.

It doesn't have any res judicata effect on subsequent proceedings in Texas.

It is not an admission of guilt for example in a subsequent civil proceeding.

Justice Thurgood Marshall: Is it different from a guilty plea?

Mr. Burt Neuborne: Yes sir, very different from the guilty plea.

Justice Thurgood Marshall: In that case?

Mr. Burt Neuborne: A guilty plea --

Justice Thurgood Marshall: You mean at Texas case?

Mr. Burt Neuborne: Well, for -- Your Honor, I think Texas follows the traditional rule that would be followed in the federal court.

For example if there's an antitrust --

Justice Thurgood Marshall: Do you think?

Mr. Burt Neuborne: If there's an antitrust prosec --

Justice Thurgood Marshall: Do you think?

Mr. Burt Neuborne: That's my understanding of the Texas law.

Justice Thurgood Marshall: Well, it's showing you one there who lived --

Mr. Burt Neuborne: Well, Your Honor if I could read you that Texas statute which my colleague has pointed out to you.

Justice Thurgood Marshall: That's all I ask you.

Mr. Burt Neuborne: I'm sorry I should have gotten to it much sooner.

The legal effect -- this is Texas Code of Criminal Procedure Annotated Article 2702 subsection 6 in 1965.

The legal effect of such plead referring to a nolo contendere plea shall be the same as that of the plea of guilty.

But the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the Act upon which the criminal prosecution is based.

Justice William H. Rehnquist: Well that's quite different all than saying that it doesn't have any collateral effect in the traditional sense because you take the federal antitrust judgments and certainly the Texas statute sounds like it's a counter part of them permit the use of a criminal judgment and to rather unusual way in a civil action.

If there's been a guilty plea and it sounds to me like other saying is in Texas is that a nolo plea won't have this broad in effect.

Mr. Burt Neuborne: But Your Honor as I understood, I understood that and I think Your Honor's suggestion that the Texas practice is the same as the federal antitrust practice is correct.

But under federal antitrust practice, the entrance of the nolo plea by a defendant cannot be used against him in a subsequent civil proceeding to determine that the underlying legal issues and that legal and the initial criminal proceeding were to be resolved adversely to him and --

Justice William H. Rehnquist: That certainly makes sense but it seems to me that falls far short of saying that he is not bound by the judgment entered in this case.

Mr. Burt Neuborne: We want all -- all petitioners.

Well, perhaps then, I should clarify what petitioners seek precisely in this case.

Petitioners are not attempting in this case collaterally attack the Texas judgment.

Justice William H. Rehnquist: But you're asking that they expunge, aren't you?

Mr. Burt Neuborne: Well, Your Honor petitioners seek three causes of action and because the case below which disposed of under Becker versus Thompson, no Court below found it necessary to analyze the three causes of action separately but I suggest that the separate analysis of the cause of action is critical you make it in a proper resolution.

Petitioner's first cause of action and their primary cause of action is a cause of action based on seeking a declaratory judgment identical to the Steffel declaratory judgment protecting them against the threat of the future prosecution.

Petitioner's second course of action was a determination not that the conviction be voided but simply that Texas be restrained in some way from disseminating records of the conviction in the future.

In other words the fine, the punishment whatever Texas did to petitioners was inappropriate imposition of sentence under nolo contendere of plea.

Justice William H. Rehnquist: Well, what's the federal basis for that second cause of action?

Mr. Burt Neuborne: That as far as I know is a normal cause of action and one which the District Court never reached Your Honor because it felt that it could not even entertain the first cause of action.

I suggest on remand that these are questions if this Court were dispose to remand but these are questions which obviously must be grappled with --

Justice Byron R. White: But your cause of action again has a plea?

Mr. Burt Neuborne: No, sir.

I say that there is -- there are that we must determine whether it's moot on remand.

It may well be on remand but it is more.

Justice Byron R. White: I thought you said that -- and it's not (Inaudible).

Mr. Burt Neuborne: No, sir.

Justice William H. Rehnquist: What's the law to suggest these?

Mr. Burt Neuborne: No.

What I suggested was that under Steffel it would be appropriate on remand to the District Court to take fresh evidence of that fact but this case is now three years old Your Honor.

It was filed in March of --

Justice Byron R. White: But also suppose he appealed that you have trial de novo, you have judgment to contest, but in any way he was not found guilty?

And then you cited that he should go to federal court rather than appeal in Texas.

(Inaudible) Texas appellate system?

Mr. Burt Neuborne: Yes, sir.

Justice Byron R. White: Couldn't suppose directing it in three causes is open to them.

Mr. Burt Neuborne: No, sir.

We don't-- we do not --

Justice William H. Rehnquist: Well, why wouldn't you?

Mr. Burt Neuborne: We don't suggest Your Honor.

Justice Byron R. White: But why wouldn't you?

Mr. Burt Neuborne: Because of the absence of a two-tier problem in a direct appeal situation.

Justice Byron R. White: Well, but rather that's affirm, but firmly what was barred was it res judicata or what?

Mr. Burt Neuborne: Oh!

I see, I understand.

Probably res judicata or if not --

Justice Byron R. White: What about Younger versus Harris?

Mr. Burt Neuborne: Well, it's not res judicata Younger versus Harris, the notion that the criminal preceding continues on to the very end.

Justice Byron R. White: Under that party, let's assume that in trying you got to assume.

The type of appeal had expired and so there was no criminal case pending, it would still say that Younger would be part in the sense that it could always have (Inaudible).

Mr. Burt Neuborne: Your Honor, I would suggest that then the issue would turn on what the cause of action was.

If the cause of action were a collateral attack on the conviction itself, I think that Younger would bar, so if that the cause of action would prospect --

Justice William J. Brennan: So either res judicata would enough to be barred?

Mr. Burt Neuborne: In no circumstances but I think the critical distinction and the distinction which I'm trying to articulate is the difference between the cause of action which is retrospective in nature and looks backward to attempt to impeach the judgment itself and a judgment which is declaratory and prospective in nature under the Steffel rule and which --

Justice William J. Brennan: That is very dysfunction argument in sometime?

Justice Byron R. White: Well it falls, it falls between two tools, I'm afraid I have not in my own mind Your Honor.

Justice William J. Brennan: Well, given that the records you have (Inaudible)?

Justice Byron R. White: No, sir. I think it might be possible although it might be possible to postulate an argument that said that the conviction when made was proper and it having pleaded nolo, one cannot then you go back and attempt to directly impeach the conviction.

But that the conviction was based on unconstitutional statute which is subsequently been found to be unconstitutional and that would -- it would be inappropriate to continue to punish the petitioners on a daily basis.

By the daily dissemination of the arrest and conviction records prospectively, in other words I think the expunction cause of action has some elements of a prospective application although I agree with the Court that there is at least as to the expunction aspects of the case.

Justice Thurgood Marshall: Well, what good will it do this petitions, assuming that if you win this case and assume it doesn't get on the front page of every newspaper in this country how will they able to know about it?

Justice William J. Brennan: But Your Honor, we will -- first their arrest and conviction records will be expunged and in terms --

Justice Thurgood Marshall: Well, how will they know about it?

Mr. Burt Neuborne: Well, but in terms of the ordinary and normal dissemination of the arrest and conviction records, which go on in everyday life at least, that will stop for the petitioners.

Justice Thurgood Marshall: But how they will know about it?

Mr. Burt Neuborne: Your Honor, we will make every effort to notify them personally.

I --

Justice Thurgood Marshall: And if they're alive you might find them.

Justice Byron R. White: Yes, sir.

Well, I -- we will make every effort to find them and to notify them personally.

Your Honors, I don't -- Yes sir?

Justice Lewis F. Powell: When did you all last hear from the petitioners?

Mr. Burt Neuborne: Your Honor, as I understand it approximately a year ago.

Justice Lewis F. Powell: Did you ask counsel hear from them or was there some indirect communication?

Mr. Burt Neuborne: Your honor, I'm counsel in New York.

May I have a moment to check with my co-counsel on that point?

Justice Lewis F. Powell: Have you ever heard from them?

Mr. Burt Neuborne: If I have personally heard from them?

Justice Lewis F. Powell: Yes.

Mr. Burt Neuborne: No sir, I came into this case.

Justice Lewis F. Powell: Has any counsel in this room ever heard from them?

Mr. Burt Neuborne: Oh, yes, sir.

Justice Lewis F. Powell: Which one?

Mr. Burt Neuborne: Oh, did you just say in this room, Mr. Powell?

Justice Lewis F. Powell: Yes.

Mr. Burt Neuborne: Your Honor, counsel who has dealt personally with them is Professor Walter Steele.

Justice Lewis F. Powell: Is he present?

Mr. Burt Neuborne: At the Southern Methodist University.

No sir I'm afraid he is not.

Justice Lewis F. Powell: Do you know when he last heard from them?

Justice Lewis F. Powell: Approximately one year ago Mr. Kennedy told.

Justice Lewis F. Powell: Was that in writing or how was the communication conveyed?

Mr. Burt Neuborne: Professor Kennedy tells me the original authorization was in writing but he doesn't know whether the last contact a year ago was in writing or not.

Justice Thurgood Marshall: Can you tell this Court what they want right now?

Yes, sir what they want right now.

Justice Thurgood Marshall: How can you do it?

If you've never seen them and nobody else has seen them for over a year.

Mr. Burt Neuborne: What they want right now, Your Honor --

Justice Thurgood Marshall: How could you say it?

Mr. Burt Neuborne: Well based on the authorization which they gave to counsel, when the case was originally begun.

Justice Thurgood Marshall: But people change somehow?

Mr. Burt Neuborne: Yes, sir.

It's possible that they don't care about their arrest and conviction records anymore but I suggest to the Court that it's not like it.

Justice Thurgood Marshall: But how do we know we've got a case or controversy here?

Mr. Burt Neuborne: I don't know that you have.

Justice Thurgood Marshall: Oh, you don't?

Mr. Burt Neuborne: We suggested to the Court and I think appropriately so that the problem -- a problem with this case is that it would be appropriate to go forward with the prospective causes of action under fed -- under generalized notions of federalism but there was at the time it was presented to the District Court in 1972 a live case or controversy.

Unfortunately, the District Court believing itself bound by Becker versus Thompson failed to reach that case or controversy.

Three years have now passed since that occurrence.

I would be the last person to suggest to the Court that the Court should blindly proceed in the face of three -- of the passage of three years time without adducing fresh facts and it was for that reason that we suggested to the Court that the preferred disposition of this case is a vacation or the decisions below in light of Steffel versus Thompson and a remand to the District Court for determination as to whether or not there's anything live before the Court.

We seek no more than that in this proceeding.

We believe that if --

Justice Thurgood Marshall: But don't we need a case or controversy to do that?

Mr. Burt Neuborne: My understanding is that you can if you wish vacate a decision of the Court below on the grounds that it either has become moot or that the case or controversy no longer exist and remand to that court below for the taking of evidence.

Justice Thurgood Marshall: Are you suggesting mootness?

Mr. Burt Neuborne: I'm suggesting that there is possibility of it, yes.

I mean Your Honors, I --

Justice Thurgood Marshall: What do you want us to do, write an essay?

Mr. Burt Neuborne: Your Honor what if, what we suggest that you do is write a one line vacation of the District Court's dismissal and a remand to the District Court to simply determine whether under the principles that this Court are laid out last year in Steffel versus Thompson, there's --

Justice Thurgood Marshall: But I thought you said was moot?

Mr. Burt Neuborne: Well, Your Honor mootness and lack of standing in the case like this seems to come in a full circle.

If the petitioners no longer have a live case or controversy, whether one calls it lack of standing or one calls it mootness, that is something which ought to be determined on remand in the District Court and we suggest the appropriateness of that as a disposition of this matter.

We do not suggest this case as an appropriate vehicle for major consideration of the issue.

Our primary point in our brief was a suggestion that since both lower courts are dispose of this case without an analysis, properly so because they found themselves barred by Becker versus Thompson from considering the difficult question in the case raises at the appropriate way to dispose of this case is vacate those decisions, remand to the District Court, see whether there is a live case or controversy and start all over again in the light of post Steffel jurisprudence.

This Court is being asked to rule on very difficult issues on a difficult record in which there has been no analysis by the courts below.

Justice William J. Brennan: And what's your answer to Younger?

Mr. Burt Neuborne: I'm sorry sir?

Justice William J. Brennan: Why doesn't Younger rather than Steffel?

Mr. Burt Neuborne: Younger doesn't apply because the pending prosecution was over a full month before the proceeding began and the pending prosecution was over Your Honor with the consent of the State of Texas.

A normal plea need not be accepted under Texas law.

It was accepted by the judge as a speedy way to disposed of that particular proceeding and not to disclose of the underlying legal issues which that proceeding raised.

I suggest too Your Honor, that a nolo plea under the facts of this case is the functional equivalent in a criminal case of the England reserve in the civil case and that you are present or involuntarily in a state form.

You urge the state form, alright you have me in the state form, you can convict me under a nolo plea but I would like to reserve my right to litigate the underlying federal issues until some subsequent point.

Justice William J. Brennan: Do you and the State agree that that is the effect of a nolo plea in Texas?

Mr. Burt Neuborne: I have not discuss the matter with the State but from the statute that was the understanding of counsel when he offered the nolo plea, that is the understanding of counsel today when we present it to the Court.

Justice William J. Brennan: But what -- so what -- it certainly didn't bar you for appealing up through the state system.

Mr. Burt Neuborne: No sir and on that --

Justice William J. Brennan: And or it didn't bar you from raising your federal claims further in the state system?

Mr. Burt Neuborne: No sir except under those circumstances had we done so, I fear that we would have been --

Justice William J. Brennan: I understand that but there was no bar.

Mr. Burt Neuborne: Oh, no sir, we were -- except for the bar that's raised by the danger of a 20-fold increase in sentence in the two-tier system of justice which Texas maintains which Your Honor can be a substantial impediment to proceedings.

Petitioners were fined $10.00 and the potential maximum that they could have received on a trial de novo was $200.00 fund.

Justice William H. Rehnquist: But they could have re-litigated these issues in the higher court, could they not, the (Voice Overlap)

Justice William J. Brennan: No question about it Your Honor.

No question about it.

Chief Justice Warren E. Burger: But returning to the questions of Mr. Justice Marshall a few minutes ago, you got a petition for certiorari filed in this Court nearly a year and a half ago and during that year and a half the period, we don't know whether there's a case or controversy still here.

Mr. Burt Neuborne: Your Honor, when --

Chief Justice Warren E. Burger: Yet the whole machinery of the course has been involved in dealing with this case which we're not sure and you can't assure us is a case.

Mr. Burt Neuborne: Your Honor, when we learned of the problems in locating the plaintiffs, that's when we in our -- for the first time in our brief on the merits suggested to the Court the appropriateness of a remand in this case and not a plenary consideration on the merits.

Chief Justice Warren E. Burger: I suggest to you that it's hardly the time of the case that ought to engaged the attention of this Court with all else it has to do to wait until the case has been here for a year and a half to find out whether there's any case at all and that is calling you personally considering your job as counsel.

Mr. Burt Neuborne: We -- I take it, I take it.

No sir, I take it as a personal criticism, I apologize to the Court because I think you we're right.

I should have notified you earlier.

Chief Justice Warren E. Burger: I don't intend it personally.

You're performing your function as counsel that I'm speaking to the question of the role of this Court and how our time should be consumed and then defined.

Mr. Burt Neuborne: Yes, sir.

Chief Justice Warren E. Burger: So there's no personal criticism.

Mr. Burt Neuborne: I understand that and I agree with it completely.

Justice William H. Rehnquist: Well I suppose your suggestions of a Steffel remand with these following the Steffel procedure determining whether there is a live case or controversy represented or recognition on your part and suggested --

Mr. Burt Neuborne: Well, yes sir.

That's -- I think that's why we did but I think the Chief Justice is absolutely correct that we should have been more explicit as to why we were saying it.

We thought that it came across clearly enough in the papers but we should have been more explicit as to why we thought a Steffel remand was appropriate.

Thank you Your Honors.

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

Mr. Conner.

Argument of Douglas H. Conner

Mr. Douglas H. Conner: Mr. Chief Justice and may it please the Court.

I represent five-named respondents in this present litigation: Frank M. Dyson, the former Chief of Police for the City of Dallas and Alex Bickley, the present City Attorney of Dallas, Scott McDonald, former City Manager of City of Dallas, Hugh Jones, former clerk Municipal Court and Wes Wise, the present incumbent Mayor who soon is subject to going through an election and campaign for his re-election.

The facts in this case briefly the petitioners were arrested in January 8, 1972 at 2 a.m.

I differ with counsel as to their version of the facts.

The facts are set out, are at least our version of the facts are set out in the arrest report that's made a part of appendix of this file.

Chief Justice Warren E. Burger: What page, do you have the page?

Mr. Douglas H. Conner: I don't, it's the arrest report which refers to the petitioner Love.

It is indexed in the appendix.

I believed page 46, 47 and I think the next page also Your Honor.

The petitioners' theory of the case is that they were looking for an apartment.

The arrest report indicates that it was in an area where new homes were being constructed, it is an area of North Dallas, a residential area that shortly subsequent to the arrest there was a report of burglaries in the area.

There had been burglaries at night in this particular area.

It was 2 a.m. on a week night, there was protective agency in the area and these were the only vehicles apparently or the only persons in that area shortly after the call.

It was upon this information that the police officers arrested the petitioners.

Justice Potter Stewart: What's an alias ticket?

Mr. Douglas H. Conner: Sir, one of the petitioners had a ticket which he did not dispose of.

He did not -- it was alias.

He didn't pay his fine nor did he -- he did take a play on the case but then pay his fine.

Justice Potter Stewart: Both of them have?

Mr. Douglas H. Conner: I believe it was one of them.

Justice Potter Stewart: Both 45 which has to do with Ellis and 46 which has to do with Mr. Love, each one is also arrested for loitering and alias tickets.

The suspect also found to have alias ticket.

What do you say an alias ticket is?

Each one has.

Mr. Douglas H. Conner: An alias ticket is one that hasn't been disposed of by payment of a fine.

Justice Potter Stewart: About what?

Mr. Douglas H. Conner: By payment of a fine.

Justice Potter Stewart: What kind of -- is one what that hasn't been disposed of?

Mr. Douglas H. Conner: It's a ticket or citation that usually a Minor Misdemeanor Traffic Citation type matter which they either took a plea of guilty or they just never did come in to Municipal Court and dispose of.

In those instances, the procedures of the Dallas Police Department is when they do reach an individual who has an alias citation.

They bring him to the police station and may compose a ban to ensure their presence are at least the forfeiture of their ban.

The petitioners have assert in their brief and through that this case that they have use diligence in the state court.

We assert they have not use diligence in any manner.

They plead guilty or no contest.

Statute said it's one and the same.

They took the $10.00 fine and $2.50 court cost and they plead out and did nothing further in the state courts.

They present two questions in this action.

One is -- having once been fined are they proper persons to bring declaratory judgment for the threatened future arrest.

And also they pray for an expungement.

In the respondent's answer to the complaint, we assert it then and we asert now that the petitioners have failed to state a claim upon which relieve can be granted.

They did not assert any allegations of bad faith or harassment against these respondents.

They showed and indicated by the pleadings no irreparable harm or injury.

We've also asserted and still maintain they did not give any showing of diligence.

Their action with respect to the Texas Court of Criminal Appeals is putting the cart in front of the horse.

It was not timely, it's not raisable, it's not appropriate.

They had the right to a trial de novo in the County Court of Appeals.

They indicate that this was some more severe punishment than possibly one could have obtained in Municipal Court.

I disagree.

The fine in both courts, the maximum would have been $200.00.

The exposure in Municipal Court is no greater and it was in the County Court of Appeals.

A fine --

Justice Potter Stewart: (Voice Overlap) the Act?

I noticed that upon release pleas rendered on February 22, 1972, had they pursued a trial de novo that would have been a next step would it?

Mr. Douglas H. Conner: Yes.

They have --

Justice Potter Stewart: About how much time did they have to do that?

Mr. Douglas H. Conner: I believe, Your Honor, it's 10 days.

Justice Potter Stewart: From February 22?

Mr. Douglas H. Conner: Correct.

Justice Potter Stewart: And they filed this complaint in federal court on March 27 that's after the 10th day.

Mr. Douglas H. Conner: That's correct.

Justice Potter Stewart: When you say you believe 10 days, is it or isn't it 10 days?

Mr. Douglas H. Conner: In my best knowledge, I'm almost positive yes, its 10 days.

Justice Potter Stewart: So they actually -- they let the time for that appeal run out before they brought this federal court action?

Mr. Douglas H. Conner: I'm sure of that, yes Your Honor.

Justice Potter Stewart: Mr. Conner is the ordinance still in effect in it's the same form or has it been amended?

Mr. Douglas H. Conner: Sir, it -- for purposes of this case, yes it is in effect to the extent of number of arrests, I do not know but it still is being use and enforce.

Justice Potter Stewart: Has its constitutionality been tested in the state courts anywhere to your knowledge?

Mr. Douglas H. Conner: No, it has not.

It is the respondents' position that there is not a case or controversy here.

These individuals are not proper persons to test the constitutionality of the City's Ordinance.

In light a post Steffel or any decision of this Court.

The Court should look at this case at the time of this review and not at the time that it was initiated.

This is the usual rule in federal cases.

It's not our burden to prove a case or controversy.

We've been stating that they're one a case or controversy that they were proper persons from the initiation of this suit and I'll take this position is stronger now than ever before.

There is no case or controversy.

These are not proper persons to bring this action.

Justice William J. Brennan: Mr. Conner I have one other question.

I think there is inference or implication somewhere that the prosecution in Dallas has a practice dismisses chargers under the loitering ordinance once someone has taken the necessary steps for a trial de novo.

Do you have any comment on that?

Mr. Douglas H. Conner: Well we did and in this case --

Justice William J. Brennan: I think they didn't go for each other.

Mr. Douglas H. Conner: They did plead out.

We didn't dismiss it.

We're ready for trial in this case.

The law student who wrote the affidavit I believe on page 40 to 41 of the appendix said, we dismiss maybe a quarter of the cases.

Yes there are dismissals Your Honor but I don't think it's a practice of customarily dismissing it when we see the eyes of an attorney, no sir.

This Court is said it's a rare case where single prosecution constitutes a quantum of harm to justify federal intervention, I say this case sir has been no showing of harm to justify federal intervention.

We can't look at the subjective feelings are only the subjective feelings of one of the petitioners said I have a chilling, feeling about my First Amendment rights being affected.

We got to look to the genuine threats if they are genuine and look at the objective findings in the record of the five respondents only two of them remained.

There is no showing as to the actions of the incumbent city officials.

There has been no harassment or no bad faith alleged.

There's been no pattern of arrest indicated which would apply to these persons that wouldn't to apply anyone else.

The City of Dallas hadn't been shown to go laughter and just prosecute hippies or college students or any ethnic social group or any racial minority or any distinct class of persons which the petitioners' might belong.

The law student indicated that there are 40 to maybe 50 arrests a month under this ordinance.

I maintain it's highly speculative and conjectural that these persons will again be arrested under this ordinance.

Just sheer mathematics if they were in Dallas and we don't have a showing that they are and they probably are not, we are in municipality, the 8th largest city in the country with a population in 1970 of 844,000 and a county population in excess of a million three.

And the mere mathematic possibilities are very remote particularly for someone whose whereabouts can't even be shown to be in Dallas.

The petitioners waived with the advice of counsel their right to poceed further.

This Court has look closely anytime someone takes a plea and waives his constitutional right to proceed.

I think this Court should particularly consider this in the light of the fact that this is a misdemeanor offense and look what posture it puts the respondents.

How can we proceed further when the petitioners plead out?

We cannot go further.

We are barred from going any further.

Yes we took a plea of guilty and what else can you expect of the respondents and look what posture the petitioner's have placed us the respondents.

Justice Potter Stewart: The fact remains Mr. Conner does it not that the District Court here dismissed this complaint on the authority of Becker against Thompson?

Mr. Douglas H. Conner: That's correct.

Justice Potter Stewart: And Becker against Thompson was explicitly overruled by this Court and Steffel against Thompson.

So wouldn't it logically follow that the thing to do is to remand this to the District Court to consider the case free of misapprehension that Becker against Thompson as the law?

Mr. Douglas H. Conner: Your Honor I think, it was decided under Younger Doctrine primarily and the interpretation of the Fifth Circuit of Younger.

Steffel makes the most strongest argument as the case of controversy the genuineness of the threat of prosecution in Ellis decision also strongly support the position that in only cases of genuine threats of future prosecution should this Court or any other Court entertain federal intervention and I think that position is made more stronger by recent decision this Court than ever before.

I also --

Justice Potter Stewart: In other words, you're saying that in order to remand we have to find the case or controversy here and now.

Mr. Douglas H. Conner: Yes and not at the time the action was initiated by the time of review.

Justice William H. Rehnquist: But isn't your position also from your remarks that there was not a sufficiet case or controversy at the time the District Court decided this?

Justice Potter Stewart: That's exactly my position.

Justice Potter Stewart: That even again under Steffel against Thompson?

This plaintiff didn't show --

Mr. Douglas H. Conner: A case or controversy or a genuine threat or future prosecutions sufficient to involve the intervention of [Voice overlap].

Justice Potter Stewart: That's right.

Maybe a case or controversy but there wasn't a sufficient allegation of a genuine threat or future arrest [Voice Overlap].

Mr. Douglas H. Conner: Correct, and I think the Court should look in the pattern of practices of the respondents or the government officials involved and see whether or not there is a genuine threat and there are no allegations in the complaint and no allegations today or anytime.

Justice William H. Rehnquist: But I think it's your one of your positions is that only aside from Steffel, Younger against Harris as far as this 1980 that this sued in the state court or in a federal court because they failed to follow their case up to the state system.

But Younger against Harris would -- that there would have been a criminal case pending and it was still would have been pending if that appealed their case and presented their federal constitutional claims in the state courts.

Mr. Douglas H. Conner: I would believe and I do urge that Younger v. Harris should be applicable or at least considered in this Court ruling.

The only thing that precludes Younger from being considered here is that there's no pending prosecution and that was the payment of fund.

Justice William J. Brennan: But there was.

There was one which could have been in a conviction which could have been appealed.

Mr. Douglas H. Conner: Right but the petitioners by their own actions took the less stringent course and say they're not bound by Younger because we pay the fine.

Now I think that's rewarding so the last diligent from a stringent guidelines of Younger which I think are inappropriate and unfair to any litigant in federal court and particularly one who act past position to the respondents.

The court in Steffel spoke of res judicata difficulties and I think this is res judicata difficulties here there was a plea in Municipal Court and it was over.

This Court would be substituting itself for the County Court of Appeals to reverse or change over this decision and it would have a definite res judicata effect.

I think to remand this case would be a reward or award to the non-diligent to take them away from this stringent and rulings of Younger v. Harris.

I think the Court should see that there is no case or controversy and Ellis and Steffel both assert in this Court's trend to look, to see of a genuineness of these threats a possible prosecution.

I like to reserve whatever remains moments I have for rebuttal.

Chief Justice Warren E. Burger: You have a few minutes left Mr. Neuborne.

Rebuttal of Burt Neuborne

Mr. Burt Neuborne: Thank you Mr. Chief Justice.

Merely on the case or controversy point the -- as we have understood at the case or controversy perimeter which this Court had laid down both in Steffel and earlier on Boyle versus Landry flowed somewhat like this.

In Steffel, there was direct threat to a direct person and that was held to give sufficient standing.

In Long Island Vietnam Moratorium versus Cahn which this Court affirmed last year there was generalized threat by a prosecutor to the public at large and that was sufficient to give standing.

In Roe v. Wade and Doe v. Bolton there was a mere existence of the statutes themselves unaccompanied by any specific threat and that was held sufficient to give standing.

And in Epperson versus Arkansas, there was a discredited statute which been on the books -- which would not been enforced since 1928 and in Epperson, that was held sufficient to give standing.

We think that the petitioners at least in 19 -- in January of 1972 when the case or controversy was originally or March of 1972.

When the case or controversy was originally submitted to the federal court manifested as sufficient state, sufficient future arrest which was neither chimerical nor imaginary within the language of this Court.

In that, the only conduct which they have been guilty of was to be guilty of being on a Dallas Street at 2 o'clock in the morning in a car driving in the Dallas suburb.

They had no idea why they we're arrested.

They had no idea what conduct on their part attribute the arrest.

Indeed, you had a statute sufficiently broad that would virtually invite dragnet and suspicion arrests, and if these people don't have standing to challenge the statute it would be virtually impossible to hypothesize anyone else to whom the statute might be applied who would have standing.

It's a very vice of a Dallas ordinance that it's so vague, so without standards but it's not directed particularly at anybody that there is a virtual grant of untrammeled discretion to the police to make whatever arrests they wish.

Having been arrested under at once we think that wouldn't have been sufficient back in 1972 to determine whether or not there was a case controversy especially given the pattern, the recurrent patterns of enforcement which the Dallas police were engaged in.

Your Honor, we do not ask this Court all to substitute itself or the federal courts to substitute itself from appellate form.

The only thing that we ask in this case, is that if a jurisdiction which permits nolo contendere is prepared to allow a criminal defendant to offer a nolo contendere to plea and to take the nolo contendere to plea that under general principles of nolo law that, that grants a benefit to the state and then it allows the state a speedy disposition of the particular proceeding and the imposition of sanctions.

On the other hand, the person who offered the nolo plea himself is attempting to reserve for himself the opportunity should have be appropriate to litigate the underlying legal issues in a Federal Court pursuant to the choice of form rules granted by the Civil Rights Act of 1871.

In fact, in candor the basis of our claim is that a nolo plea if accepted by an appropriate jurisdiction is the functional equivalent of a reserve under England versus Louisiana Board of Medical Examiners.

And is the attempt in a criminal litigation to reserve for a future time the opportunity to present underlying legal questions to a federal court.

The option whether we would accept it lays with the State.

The State was under no obligation to accept the nolo plea but they did so and under those circumstance we believed that the petitioners have not foreclose their rights to present the underlying legal issues at some appropriate times to a federal court.

Justice Potter Stewart: Well, I gather you are the only one that you are under no obligation under something said in Monroe and Pape and Preiser and Rodriguez.

Mr. Burt Neuborne: Oh, of course.

Justice Potter Stewart: To exhaust any traditional relief.

Mr. Burt Neuborne: Of course.

Of course, to the extent this is appropriately in 1983 action is now I take it axiomatic that there is no obligation to exhaust state judicial remedies prior to the presentation of a constitutional issue.

Justice Thurgood Marshall: Well I gather that, I gather that certainly been settled as to administrative state of administered remedies but what about the --

Mr. Burt Neuborne: I think state judicial remedies too, Your Honor.

I believe that --

Justice Potter Stewart: Well, that suggested Monroe and Paper, I gather that.

Mr. Burt Neuborne: Well, in Preiser versus Rodriguez.

Justice Potter Stewart: Also, the language in Preiser is only for remedy under the Civil Rights Act is available.

A plaintiff need not or seek to address in the state for on them, the first case cited, Mr. Monroe and Preiser, 356 at 183 where it was suggested that you not exert judiciary.

Mr. Burt Neuborne: I think that's right.

What we --

Justice William J. Brennan: It's up to the extent Younger might make?

Mr. Burt Neuborne: Yes, sir and the reason that Younger we think does not apply here Your Honor was the nolo contendere aspect of this case.

Texas, Your Honor, had it with its power to insist upon a merit determination.

Justice William J. Brennan: Then we have a different story of the (Inaudible) as far as Government.

Mr. Burt Neuborne: It would be a different issue, yes sir it would be a great deal more difficult.

Justice William J. Brennan: Or it might be different from --

Mr. Burt Neuborne: Your Honor under those circumstances I want to know whether it was a two-tier system of justice so that the appeal might have been impeded.

In the absence of a two tier system of justice --

Justice William J. Brennan: But I think a while ago in your brief that if you have had trial de novo is that your constitutional claim that's been rejected and been convicted in and then tell to appeal.

Mr. Burt Neuborne: We could not abuse 1983.

Justice William J. Brennan: Because Younger?

Mr. Burt Neuborne: Yes sir but Your Honor, but Your Honor -- but the appeal from the trial --

Justice William J. Brennan: You have touched that.

Mr. Burt Neuborne: I'm sorry sir.

Justice Potter Stewart: Well I don't understand if you can see that why then you are not in the same position not having taken a de novo with you.

Justice William J. Brennan: Your Honor, in the novo appeal the potential sentence, the potential maximum was 20 times greater.

Justice William J. Brennan: Why is Younger?

If you could have stop there without going under the States Supreme Court or to whatever you have to go under the taxes procedure before you'd exhausted all to this remedy and you say that would a barred your action in federal court?

Why doesn't it, in fact that's what you're in now?

Mr. Burt Neuborne: The difference Your Honor is that a trial de novo to sentence that one receives of the trial de novo cannot be changed on appeal except in accordance with restrictions of Pierce versus North Carolina so that there is no threat of a greater sanction cause by going up through the appellate process.

But when you go a trial de novo you take the risk in this particular case, you would have taken a risk of a 20-fold increase in sentence and it's that impediment on the free exercise of the appeal that we think distinguish as the two types of --

Justice Thurgood Marshall: Well if you can, if nolo contendere will helps you out why can you bring in 1983 Action before the original trial court?

Mr. Burt Neuborne: Your Honor, I think that under Younger principles --

Justice Thurgood Marshall: You couldn't.

Mr. Burt Neuborne: The state was perfectly entitled to impose punishment on us but that parking seeking --

Justice Thurgood Marshall: But now the nolo is different is some place between the guilty plea and no trial?

Mr. Burt Neuborne: Yes sir, and we think the difference is that in a nolo situation we subjected ourselves the state interest which younger was designed to protect was the capacity to prosecute the person for a particular incident.

They have vindicated that interest in this case.

Justice Thurgood Marshall: Would you admit that's a very thin line?

Mr. Burt Neuborne: You Honor, I think it's an important line because the state interest that Younger was designed to protect was the ability to prosecute a particular defendant for a particular incident and that state interest has been vindicated here.

These defendants have paid the fine.

They paid the penalty that Texas sought it impose upon them.

The issue is whether or not they are going to be foreclosed from raising the underlying legal issue with some future time in the federal forum and we think that no principle of Younger requires that.

Younger doesn't guarantee that courts, the state courts the opportunity to pass on the underlying legal issues.

It only guarantees the state courts the capacity to complete a pending prosecution and they have done so successfully in this case.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Featured:

Moore v. Board Of Education - Oral Argument

Thu, 23 Aug 2012 18:14:12 +0000

Case:

Moore v. Board Of Education

Media File:

444_19701013-argument.mp3

Related Transcript:

444_19701013-argument

Transcript:

Argument of Whiteford S. Blakeney

Chief Justice Warren E. Burger: 444, Moore against Charlotte -- excuse me, Moore against Charlotte-Mecklenburg and 498.

Mr. Whiteford S. Blakeney: Yes Your Honor.

Chief Justice Warren E. Burger: Mr. Blakeney, you may proceed whenever you're ready.

Mr. Whiteford S. Blakeney: Mr. Chief Justice, may it please the Court.

I believe that this Moore case will furnish to the Court more truly than is to be found elsewhere in the Charlotte-Mecklenburg litigation.

Clarity and certainty and indeed the solution for the problem with which the Court is now wrestling.

These qualities emerged if the Court please, first I think because in this case and only in this case are there individuals before the Court, pleading their constitutional right against the compulsions which have been imposed below.

This Court has often recognized of course that that puts a constitutional questions in its clearest bite.

Furthermore, if the Court please, the compulsions which have been imposed are all opposed by these Moore plaintiffs for whom I appear.

They do not accept some and reject the rest.

They oppose all their compulsions of racial nature which have been fastened upon them below.

By contrast as Your Honors will have noted, the plaintiffs and Swann of course and the District Court below to be sure, support all the compulsions which have been imposed.

On the other hand, the Charlotte-Mecklenburg Board of Education, defendant in this case, acquiesces in some of the compulsions indeed propose some of them, the Solicitor General acquiesces in such as maybe regarded as reasonable.

Pardon me, the Solicitor General more specifically in such as maybe regarded as feasible.

And the Circuit Court below in such as may regarded as reasonable.

Justice Thurgood Marshall: Are you able to draw in a dictionary distinction between those two words?

Mr. Whiteford S. Blakeney: I myself am not able to draw any distinction satisfactory to myself Your Honor.

In any event, we stand against all the racial compulsions and that is our posture in this case.

And from beginning to end, our position may be summarized thus briefly.

We obtained an injunction below which expresses it.

This injunction said to the Charlotte-Mecklenburg Board of Education and who -- any agency imposing these compulsions.

It said, “Do not bar any child from any school in Charlotte-Mecklenburg because of its race, and do not assign children in Charlotte -- to any Charlotte-Mecklenburg School on the basis of race.

This is our theme as I say at all stages.

Justice Potter Stewart: Your clients are -- who is -- Mrs. Moore and others?

Mr. Whiteford S. Blakeney: Yes sir.

Justice Potter Stewart: I don't need to know their names, I'm rather just -- in that, but they are the parents of white public school children as well as of Negro public school children or only white public school children?

Mr. Whiteford S. Blakeney: Both Your Honor.

Justice Potter Stewart: Both.

Mr. Whiteford S. Blakeney: And the minor --

Justice William O. Douglas: What do you do about the problem of disestablishing a jury segregated school system?

Mr. Whiteford S. Blakeney: Your Honor that is of course a central subject that I will come to, but I will --

Justice William O. Douglas: In your own time?

Mr. Whiteford S. Blakeney: I will answer it now if -- but I would prefer if I may because it is indeed of course the heart, the ultimate heart of the problem.

Justice William O. Douglas: Because taking what you said literally then there is no power.

Mr. Whiteford S. Blakeney: There is no power, we say Your Honor.

Justice William O. Douglas: To disestablish?

Mr. Whiteford S. Blakeney: No, there is no power to trample their constitutional right of any citizen in the disestablishing process.

And the constitutional right of these citizens, these plaintiffs is that they shall not be barred on racial grounds and they shall not be assigned or racial grounds and that is what is being done to them.

Justice William O. Douglas: But if a person is -- we assume, he is caught in a ghetto that was established by the state?

Mr. Whiteford S. Blakeney: Yes.

Justice William O. Douglas: And he is too -- he doesn't have the resources to get out.

What is your solution then?

Mr. Whiteford S. Blakeney: The constitution says (Voice Overlap) --

Justice William O. Douglas: That nature take its course?

Mr. Whiteford S. Blakeney: The constitution says to him, the constitution is expanded in Brown.

We say that the constitution seeing his situation says to him, “Every effort is going to be exerted and all zeal and all absolute good faith must be put into effect to see to it that you are given freedom that you shall not be barred anywhere on account of your race and that you shall not be assigned anywhere on account of your race.”

And I think that is what this Court was referring to in the cases it has recently decided.

This court was expressing its sterning patience with the fact that freedom was not truly accorded as this Court considered in many of these cases such as (Inaudible) Carter and Alexander against Holmes.

And we go 100% with all and any who will see to it that the freedom is truly there.

But, once that freedom is truly accorded, that freedom from governmental action based on race, once that freedom is truly accorded, then we say it is not a too big -- said that the constitution then requires that the freedom of any person be taken from him in the process of the dismantling, or to express it otherwise Your Honor that this meddling process shall not itself reconstruct the very thing that is being dismantled or -- use still another analogy, the constitution so Brown commanded this, the constitution says, “You shan't have travel the racial road in the matter of public schools.”

Now Your Honor, our basic theme is you can't travel that same racial road and so to speak remedying the constitutional wrong of the past.

You do not remedy past constitutional wrong of racial nature by imposing present, constitutional wrong of racial nature.

Chief Justice Warren E. Burger: Would you consider that the defendant, the constitution if the School Board not the Court, the School Board closed all of the entirely Negro schools and provided public transportation of the students of those schools into other schools to accomplish the dismantling as they saw it?

Mr. Whiteford S. Blakeney: We think that the constitution Your Honor cannot be said to require that any action be taken which has as its soul objective racial assignment.

Chief Justice Warren E. Burger: Does it prohibit it?

Mr. Whiteford S. Blakeney: It prohibits it.

Chief Justice Warren E. Burger: In other words, your answer --

Mr. Whiteford S. Blakeney: That's what Brown say.

Chief Justice Warren E. Burger: Your answer to my question would be then that the School Board could not close these schools and transport the students out to other schools in the outlining districts?

Mr. Whiteford S. Blakeney: If Your Honor in the operation of the schools on a natural geographic or other, non other -- non-racial basis such action came naturally, came normally, educationally, very well.

But if the School Board's action and purpose was to accomplished assignments on a racial -- on racial basis which otherwise would not be done, but it's being done, the child is pushed.

The child is taken.

The child is compelled solely because of his color, then that runs a file of the constitution right there.

Just as truly as what existed in Brown and we plead the same constitutional right here that the plaintiffs pled in Brown.

Now, quickly if I may Your Honor, since jurisdiction in this case was deferred, I should spend a moment on how we come here, I think.

I'll try not to take too much time on that because it is developed in our brief, a jurisdictional statement and also a typewritten response which we file only a few days ago in answer to a suggestion filed by the Swann plaintiffs, only a few days ago.

We beg the Court's attention to those documents.

But to outline briefly, these plaintiffs upon learning in February of this year, that certain compulsions were about to be imposed upon them went into the State Court of North Carolina.

There they obtained an injunction.

An injunction which we say is in the terms of the essential meaning of Brown and an injunction which is in the terms of a North Carolina statute also.

And those terms simply were what I've already repeated.

Do not assign the child on basis of his race, any other basis, but not his race.

Do not exclude him from a school because of his race.

Now, that injunction was -- our case was removed into the federal court at that point upon valid federal grounds as we understand.

And the defendant Board of Education asked for a three-judge court to determine the constitutionality of the pronouncement of the statute which is I say was – are the very words of the injunction that we had.

Before the three-judge court convened and heard the case, the District Court below set aside our injunction.

The single judge stated aside, saying in expressed terms that he did so pending the rulings of the three-judge court and of this Court.

Now, the three-judge court heard the case and ruled that the words I have already expressed Your Honor are unconstitutional.

That it -- and here came a remarkable inconsistency, an inconsistency that is deep and inherent and afflicts all who seek, I respectfully say, “Rises again and again to plague all who seek to say, “We will obey Brown, which commands operating school on a non-racial basis.

We will obey Brown by the very act of operating them on a racial basis.”

Here is the inconsistency that the Court itself expressed.

It says, “It is constitutional, quite constitutional.

Indeed, it is the essence of Brown that you shall not exclude the child from a public school on ground of his race.”

But it is unconstitutional to say that he may not be assigned to a school on the basis of his race.

Those two things, Your Honor, are absolutely in conflict.

They are inherently so.

Is it not obvious that if there can be no prohibition against assigning the child on basis of his race and if you do, therefore assign him on the base of his race, you are excluding him on basis of race from another school, this school to which he wishes to go or which he may have been attending and to which it is natural, geographically or otherwise that he should attend.

Justice Potter Stewart: Your argument is based entirely on the Fourteenth Amendment of the United States Constitution and not at all on a federal statute, is it?

Mr. Whiteford S. Blakeney: Entirely.

Justice Potter Stewart: Entirely on the constitution?

Mr. Whiteford S. Blakeney: Yes.

We stand their fall of course upon the constitution.

Justice Potter Stewart: And your clients are the parents of school children.

They're no teachers.

You don't represent any teachers in the Charlotte public school system?

Mr. Whiteford S. Blakeney: Parents and children -- the children themselves have by a proper process been made parties.

Justice Potter Stewart: And therefore you are making no claim with respect to the constitutionality vel non of the integration of faculty?

Mr. Whiteford S. Blakeney: No sir.

Now, we present this question Your Honors not in the abstract, we show the factual background and show at Mecklenburg where these children live and go to school.

We show in this record and it is concise, these things quickly, that as far back as 1965, this school system was adjudged by the District Court, the same District Court albeit a judge, was adjudged to be operating on a non-racial basis.

A basis in which there was no gerrymandering of school attendant's zone.

Geographically, they were arranged and on geographical basis children were assigned to attend and there was complete freedom of transfer.

And so it was adjudged non-racial and the Circuit Court upheld that.

And then -- now just within the past year, the same District Court, Albeit now the new judge reaffirmed many of those factual findings.

Adjudged for example that in no other public school system had the Board of Education achieved as much in the way of racial mixing as that no other case that had come before the appellate court had so much been achieved to that nature.

That there was and is now no racial purpose, motive or element in the spending of money, in the providing facilities, faculties, schools, buildings, books, and enumerated numerous others.

Nevertheless, Your Honors, upon that picture, there came orders of unusual severity.

These orders said, “Despite the factors just found, it is also true that in some schools there is not the mixture of the community.”

Therefore, this Court will order that the mixture of the community shall take place in every school.

And the court went on to say, this shall be maintained, henceforth and note these words, almost revealing in its paradox, these words just as was done for decades before Brown and there is the situation Your Honors, non-racial until now they ordered to be racial.

Now furthermore, I have already mentioned that these plaintiffs occupy a posture different from any other parties in the Charlotte-Mecklenburg Litigation and that they plead their own constitutional right none others do.

They also raise opposition on an issue which the Chief Justice concurring in North Cross said was one of the questions that needed attention.

Only these plaintiffs raised that issue.

No other parties do and that issue is uncontested before this Court except and unless as we raise it.

That issue is this; one of the compulsions here, they are of two essential natures, all the compulsions can be categorized under two headings.

Number one, the gerrymandering of the school attendants zones which the school board itself proposed and which of course, all the parties other than ourselves are now accepting.

We oppose that gerrymandering.

It is of racial nature.

The Circuit Court says it's drastic racial gerrymandering at the same moment that it upheld it.

It says, “That's what it is.”

And now all other compulsions here come under the heading of requirement that the child go long distances to school even beyond the gerrymandered boundaries.

And of course --

Justice Hugo L. Black: What is the --

Mr. Whiteford S. Blakeney: I beg -- pardon sir?

Justice Hugo L. Black: What is the longest distance this record shows?

Mr. Whiteford S. Blakeney: There are distances of as much as 15 to 16 miles.

Now, Your Honors, the distances however of course are not our point nor is busing our point as such.

That's a colloquialism.

We oppose the compulsion.

The requirement that we go away from the natural geographic school and near the child's home that he be forced to go away from that whether in a gerrymandered new zone or whether crossing the boundaries of the gerrymandered zone into another zone.

Justice Byron R. White: You don't really say that as a matter of that absolutely a school board never sent the child away from his neighborhood for any reason?

Mr. Whiteford S. Blakeney: No I do not say that.

They may send --

Justice Byron R. White: I suppose that they'd be a lot of good reasons to send the children away from neighbor.

You say they should not -- wherever they send them, they shouldn't do so on account of race?

Mr. Whiteford S. Blakeney: Brown forbids doing so on account of race.

Justice Byron R. White: And you say that gerrymandering, racial gerrymandering, pairing transportation or --

Mr. Whiteford S. Blakeney: (Inaudible)

Justice Byron R. White: -- done on a racial basis are invalid.

Mr. Whiteford S. Blakeney: Invalid.

Justice Byron R. White: And I suppose you would say the majority to minority transfer rule is equally invalid.

Mr. Whiteford S. Blakeney: Indeed.

This Court so held in Goss against the Board of Education.

Justice Potter Stewart: Well, if there is no compulsion involved, would you still say it's invalid.

I thought your --

Mr. Whiteford S. Blakeney: No sir. (Voice Overlap)

Justice Potter Stewart: -- attention were that it was a very compulsory assignments.

Mr. Whiteford S. Blakeney: These elements, governmental action, compulsory upon the child and shaped and based on no grounds, say race.

It is solely that the child has looked at -- his color is observed, that determines where he will go to school.

Justice Byron R. White: Well, if two children applied for a transfer under the majority to minority transfer rule and one of them is White and one of them is Black and the transfer is to a school with a White majority and a Black minority.

The two children transferring will not both be transferred, only one of them?

Mr. Whiteford S. Blakeney: Yes Sir -- but --

Justice Byron R. White: The Black one will get the transfer, the White one won't?

Mr. Whiteford S. Blakeney: Yes, and that is --

Justice Byron R. White: Or the reverse if the transfer from a White school is requested.

Mr. Whiteford S. Blakeney: And that is selectivity on the basis of race.

Justice Byron R. White: You say it's invalid?

Mr. Whiteford S. Blakeney: I do prohibited by the constitution.

And I repeat Your Honor, that specific subject was dealt with by this Court in Goss against Board of Education.

It was in the other direction, but it was held unconstitutional.

Justice William O. Douglas: I see that you told Justice Stewart that you didn't rely on it on any federal statute.

Mr. Whiteford S. Blakeney: No sir.

Justice William O. Douglas: I see you cite the federal statute that it's in the Civil Rights Act of 1964.

Mr. Whiteford S. Blakeney: That is true Your Honor, but only for this purpose of showing that when it comes to the action of the elected representative of the people, this is not a constitutional point, but it is significant to know, no elected representatives of the people have ever enacted any legislation in the direction which we here oppose and which we say the constitution prohibits.

The Congress in the Civil Rights Act specifically twice expressed itself to this effect.

Let it not be thought.

This is the meaning of it, I take it.

Let it not be thought that in this Civil Rights Act, we mean to condone or to provide for or in any way authorize racial balance, racial ratios, compelling anybody to go anywhere just because of his race.

This Act does not mean that.

That's is the sense in which we cited it Your Honor.

But we stand of all on the constitution.

Justice William O. Douglas: Because the statute, do you think is restricted to de facto segregation rather than the jury?

Mr. Whiteford S. Blakeney: No sir.

I think that statute merely meant to say that we, the Congress are not be understood as we enact this Civil Rights Law, we are not to be understood as providing for any kind of --

Justice Byron R. White: Well, it issues a directive to federal judges.

Mr. Whiteford S. Blakeney: Well --

Justice Byron R. White: In the Sections in the 2006 (a).

Mr. Whiteford S. Blakeney: I think in the interpretation and administration of that statute is meant.

But Your Honor, whatever maybe the true interpretation of that statute, I cannot stand upon it against the constitution.

My adversaries say that the constitution requires the racial compulsion which they espouse.

I say the constitution forbids the racial compulsion which they espouse.

Justice Byron R. White: Are you suggesting then that Green was improperly decided in the constitution?

Mr. Whiteford S. Blakeney: No Your Honor.

I can only speak to Green.

I have sought to find the exact facts of Green as merely as I could.

The factual situation in Green is far different from here.

I think that this Court did not mean to say anything in Green contrary to what I am here arguing for.

In Green, for an example, each child was assigned to the District that he formally -- in which he formally attended.

Justice Potter Stewart: That's right.

That was still dual zone.

Mr. Whiteford S. Blakeney: Yes Sir.

And I think -- and furthermore, right of transfer was accorded only after that suit was instituted here.

It's been accorded for five years and here for five years, it has been judicially found nobody has been excluded from any school on account of his race.

Nobody claims that anybody has by governmental action and compulsions.

Now, we must remember I think Your Honors, it must constantly be borne in mind that we here are applying the constitution in its primal elemental provisions.

There's no legislation here in which it might be considered that there is leeway for the policy maker.

Excuse me, that is not the situation.

Here, it is purely a question and the question we propound and we contend for is simply this, that the constitution in the Fourteenth Amendment as Brown declared it rules the case and rules in favor of the pronouncement, injunctive pronouncement and statutory pronouncement that we had below and which has been taken from us.

Now, let me come back for just one moment, and my time draws to close, for just one moment to this basic proposition.

The constitution comes to a condition of separate mess.

What does it do?

I say that the constitution as declared in Brown says with regard to that condition of separateness, every diligence must be exerted, every effort must be put to it in good faith, if the hand of Government is to be found in that separateness causing it, producing it, directly or indirectly by subterfuge or subtly or in any manner, it must be sternly removed.

And that I say, we agree with, we argue for 100%.

But --

Justice Thurgood Marshall: What did Charlotte-Mecklenburg do for the 10-year period after Brown?

Since you say that's what Brown said?

Mr. Whiteford S. Blakeney: Yes sir.

Justice Thurgood Marshall: What did they do for 10 years?

Mr. Whiteford S. Blakeney: They moved gradually in the direction --

Justice Thurgood Marshall: Like what?

What specific was done?

Mr. Whiteford S. Blakeney: The zoning, the attendance districting was made geographic --

Justice Thurgood Marshall: When?

When was that (Voice Overlap) --

Mr. Whiteford S. Blakeney: And -- in about 1963 thereabouts.

Justice Thurgood Marshall: Well, what did they do for the eight years after ‘55

Mr. Whiteford S. Blakeney: After Brown?

Justice Thurgood Marshall: Yes sir.

Mr. Whiteford S. Blakeney: There was state statute in effect which did not fully take the hand of Government out of racial compulsion.

But it did commence in at about ‘65.

Justice Thurgood Marshall: And in ‘65, what you did was to draw boundaries and when you drew those boundaries, how much fixing did you get?

Mr. Whiteford S. Blakeney: A considerable degree of it, Your Honor.

Justice Thurgood Marshall: How much?

Mr. Whiteford S. Blakeney: I cannot say the exact figures?

Justice Thurgood Marshall: You said, it was very clear in the record.

Mr. Whiteford S. Blakeney: But I am saying this Your Honor if I may, --

Justice Thurgood Marshall: That's it.

Mr. Whiteford S. Blakeney: The test is not how much racial mixing occurs.

The test is, did and in any situation today, the test is in good faith, is there governmental compulsion forcing children to be racially separate in the schools or is there not.

Justice Thurgood Marshall: Well, do you recognize that there is a need for Government compulsion to desegregate and setup a unitary system?

Mr. Whiteford S. Blakeney: Yes sir.

I recognize --

Justice Thurgood Marshall: Do you have any quarrel with that?

Mr. Whiteford S. Blakeney: I recognize that there is a constitutional mandate that governmental action shall not bar any children from a school because of his race and shall not assign him to any on the basis of race.

Justice Thurgood Marshall: That's not my question.

Is it not true that you are required to take affirmative action to disestablish the segregated system?

Is it or not?

Mr. Whiteford S. Blakeney: Affirmative action to take the hand of Government out of any racial compelling.

Justice Thurgood Marshall: And just leave it as is?

Mr. Whiteford S. Blakeney: Once that governmental hand is removed and freedom is truly accorded, if it is, then the constitution is of aid.

Justice Thurgood Marshall: My question is, you say just take the governmental hand off and let it stay like it is, is that your position?

Mr. Whiteford S. Blakeney: Yes sir.

The Government cannot go further --

Justice Thurgood Marshall: Would you still have the segregated system?

Mr. Whiteford S. Blakeney: The Government cannot go further and take the children by this “color” and say to them, you must go there and you must go there because of your race.

Justice Thurgood Marshall: What if the Government tell in Section 55.

The Government told them, you've got to go to that White school and you can't go to any school but that school.

Didn't the Government do that?

Mr. Whiteford S. Blakeney: The Charlotte authorities?

No sir.

Justice Thurgood Marshall: The Government of North Carolina.

Mr. Whiteford S. Blakeney: No sir.

Did not.

Justice Thurgood Marshall: Well, you didn't have segregated schools?

You had segregated schools.

Mr. Whiteford S. Blakeney: We removed governmental action compelling segregation.

And when that is done, Brown is obeyed.

And when the Government goes further, it reverses Brown.

Justice Thurgood Marshall: You rely so much on Brown, but what about Green?

Mr. Whiteford S. Blakeney: What about -- what?

Justice Thurgood Marshall: Green.

Mr. Whiteford S. Blakeney: The true meaning Green is consistent with Brown.

Green has not reversed Brown.

This Court would not have taken so crucial an action without saying so.

Justice Thurgood Marshall: Well, I don't think this Court reversed Brown, I'm just saying that Brown is a more recent case.

Mr. Whiteford S. Blakeney: Green is more recent.

Justice Thurgood Marshall: Green is?

Mr. Whiteford S. Blakeney: Yes sir.

Justice Thurgood Marshall: And Green said, you can have pupil placement.

Mr. Whiteford S. Blakeney: Green like Brown says, “You must accord true freedom” and that we say has been done here and I'll end with this if I may.

We stand upon this, the individual, constitutional right against governmental action on the basis of race and any individual Your Honors, no matter how little, no matter how alone, he can stand against the powers of all Government, state and federal and stand upon that proposition.

And he can say and no matter when by whom or where, racial compulsion was formerly imposed.

I object to its now being imposed upon me.

And I object to being moved anywhere because of my race.

And that is a rope to which he can cling and it will save him.

And because that is the uniqueness and the transcending power of individual liberty under a constitution and our faith is that this Court will keep it so.

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

Mr. Waggoner.

Argument of William J. Waggoner

Mr. William J. Waggoner: Mr. Chief Justice, may it please the Court.

I will speak very briefly to the statute.

Position the board has taken with reference to the statute that it is a re-expression of the statements of Brown, non-racial assignment of students.

Unlike Brown, we say that the statute also carries with it a permission to disestablish a dual system.

A statute should be construed on a constitutional manner where it can without the Court's straining for ridiculous or unwarranted result.

Justice John M. Harlan: That isn't the instruction that the state court gave it though --.

Mr. William J. Waggoner: That state court in a non-adversary proceeding used the language of Brown as I recall in its order.

I might point out circumstances of the --

Justice Hugo L. Black: As I understand your argument is based on the fact that the constitution forbids discrimination on account of race.

Mr. William J. Waggoner: That's correct.

Justice Hugo L. Black: And that it forbids discrimination even when the effort maybe the beneficent one who's trying to prevent discrimination.

Mr. William J. Waggoner: Insofar as assignment of students, that is correct.

Justice Hugo L. Black: Discrimination.

Mr. William J. Waggoner: Yes sir.

Justice Hugo L. Black: That is the key.

Mr. William J. Waggoner: Yes sir.

That is the key and our position would be that it's perfectly possible under the statute.

A system being found dual to be required to undo racial assignments and reassign children to other schools based on proximity and convenience and other non-racial factors of sound school administration.

This would be our position with reference to this.

There's some question about perhaps the legislative intent.

The legislature must make findings, must determine public policies.

And if it finds that the liberties of the children involved, we found that thus far this year, we're transporting an additional 20,000 students.

This is a substantial number of students who are being transported.

I do not say the full 20,000 are assigned involuntarily or by reasons of race.

Some of them would have been assigned to their school by reason of proximity and convenience.

Justice John M. Harlan: Do I understand you are now transporting 20,000 more than you did last term?

Mr. William J. Waggoner: Yes Sir.

Justice John M. Harlan: Where'd you get the buses?

Mr. William J. Waggoner: We are running school from 7:30 in the morning until 9:15 for opening schedules.

We have some buses that we acquired in the past year.

We have received a loan of some 14 to 16 year old buses from the State of North Carolina for the purpose of transporting.

We've also found that the legislative position with reference to safety of children in congested areas was very much warranted.

We're transporting not quite twice as many students.

Our accident rate is up to 440%.

Justice John M. Harlan: But I gather you haven't bought any new buses, is that it?

Mr. William J. Waggoner: We refurnished 28 new buses by the state that were scheduled for replacement of old buses.

Justice Potter Stewart: Mr. Wagoner.

Mr. William J. Waggoner: Yes, Your Honor?

Justice Potter Stewart: Since we are addressing to some factual matters, there would be a considerable amount of busing would there not, under the board's plan in this case, right, intra-zonal busing, would there not be?

Mr. William J. Waggoner: Yes.

Justice Potter Stewart: Because of the size and the odd shape of some of those --

Mr. William J. Waggoner: That is correct.

Justice Potter Stewart: -- gerrymandered zones that the board created?

Mr. William J. Waggoner: Right.

Justice Potter Stewart: There would be necessarily.

Mr. William J. Waggoner: There would be and at one time, we had hoped that we would be able to stretch Brown being intellectually honest to permit a strained concept of gerrymandered lands.

I don't feel that the board plan would be truly constitutional because it does take race too much in account and goes outside the compactness that Brown spoke off.

I don't think that the statute would prohibit a desegregation technique such as the location of a new school.

This would accomplish the assignment of students by locating the school in a border zone where again they would be assigned to school on objective, non-racial criteria.

Now, a great deal of criticism has been directed --

Justice Byron R. White: Of course if they -- the board has a choice consistent with your opposition that if the board has a choice of locating a new school in a Black zone or White zone or on the border, and chooses the border because of racial considerations, would you think that was stretching Brown or not?

Mr. William J. Waggoner: If the nearby schools are overcrowded and a school must be built in this area.

Justice Byron R. White: They built somewhere?

Mr. William J. Waggoner: It must be built somewhere.

I think the board can go the next step and construct the school knowing that the general attendants' lines will lie in this area.

No --

Justice Byron R. White: They would -- that would be on other -- for other reasons.

But what if there was a choice?

Mr. William J. Waggoner: If there is a -- if there was a choice --

Justice Byron R. White: And they decide, “Well, we're going to built where we'll have the -- most Blacks and Whites going to school together?

Mr. William J. Waggoner: Do I assume your question does not contain an overcrowding of nearby school?

Justice Byron R. White: Well, they needed new schools somewhere but it could easily be a half mile this way or half mile that way.

Mr. William J. Waggoner: I think that it would be within the leeway of the board to locate the school on the basis we must build a school, this is an educational reason and as ancillary, we are going to promote desegregation.

Justice Byron R. White: So you would suggest that a school board as part of its educational decision making could say we choose to educate -- if we have a choice we prefer to educate Whites and Blacks together rather than separate.

Mr. William J. Waggoner: That's correct.

Justice Byron R. White: And if we have some legitimate decisions to make, that such as location of the school, drawing of zone lines, we just prefer to get as many applicants as possible.

Do you think that would be permissible even though they are specifically taking race into account?

Mr. William J. Waggoner: I will not agree on zoned lines, redrawing zoned lines.

Justice Byron R. White: What's a --

Mr. William J. Waggoner: You -- you'd --

Justice Byron R. White: Perhaps let's say, (Inaudible) in drawing the zone line in deciding where to go to school?

Mr. William J. Waggoner: Because a student has no right to the location of a school.

There are many cases in North Carolina where a school construction is sought to be restrained.

This is the decision of the Board of Education and unless there is an abuse of discretion, a school will be constructed where the board determines.

Now there's been some suggestion that the -- there was some overreaching on the part of the board, I'd like to clear up one point.

The board was served with an injunction on the 25th of February.

On the 26th we removed it to federal court which was on Thursday.

On Monday morning we presented an order to the District Court for relief from the state court order because it was interfering with our implementation efforts.

We were at that time faced with a District Court order that's directed us to desegregate April first, we have a state court order that says do nothing now and the contempt powers of the court are approximately equal, so we had to take the choice of honoring the one that had (Inaudible).

The legislature may have had in mind the affirmative duty that was first spelled out by Judge Sobeloff in Bradley against Richmond and in his concurring opinion in the Swann case when it was in the Court of Appeals in 1966.

You'll recall that Judge Sobeloff dissented and gave a very strong dissent in our case.

In his concurring end result -- approval of our 1966 plan, he said this, “This is far from suggesting that children are to be uprooted arbitrarily and bused against their will to distant places merely to place them with children of the other race.”

Here Judge Sobeloff was talking about the affirmative duty even before Green fully enunciated.

I thank you.

Chief Justice Warren E. Burger: Mr. Vanore, whenever you're ready.

Argument of Andrew A. Vanore, Jr.

Mr. Andrew A. Vanore, Jr.: Mr. Chief Justice may it please the Court.

I think that some of us have mislabeled the statute which is now before the Court as an anti-busing statute.

In effect, it is an anti-discrimination statute which it embraces in toto, the pronouncements of this Court in Brown versus Board of Education.

In that it says that “No child shall be compelled to attend any school on the basis of race and no child shall be excluded from any school on the basis of race.”

We have long been labeled in North Carolina as have some of the other southern states as having dejure segregation.

The problem as I see it, may it please the court, is when does one remove this label of dejure segregation.

When this Court made its pronouncement in Brown, at that time as a matter of law, segregation was forever outlawed in North Carolina, dejure segregation was outlawed.

I need not remind the Court --

Justice Hugo L. Black: I presume you are saying segregation was outlawed whatever you called it?

Mr. Andrew A. Vanore, Jr.: That is correct Mr. Justice Black.

I think there is no question but that segregation was wrong but of course, we North Carolina are simply until 1954, until this Court reversed its decision in Plessy versus Ferguson, we were doing no more than was allowed by this Court until that time.

Now, I think as the Court has stated in Green, we must -- the Boards of Education have an affirmative duty to do what is necessary to come up with a plan that will realistically work.

We contend that the only realistic plan that will work both for the north and the south and I do think that the dejure de facto distinction is legal fiction.

I think we must recognize that whatever this Court does, this Court must consider that it will be the law of the land not only for the south but also for the north.

The only realistic approach to this is to allow that each child attend the school nearest his home which serves his grade, consistent with school capacity.

Now the statute that is now before this Court provides for that very thing.

The legislature of North Carolina intended as best it could to preserve the neighborhood school concept, a concept which will work both in the north and the south.

It seems that in listening to the arguments that were made yesterday, if this Court is to adopt an approach other from the neighborhood school system of student assignment.

If this Court is to adopt a reasonableness approach or a feasibility approach, we are going to have the same amount of litigation if not more litigation than we have experienced since Brown when the Court said that you must use all due deliberate speed.

At the time the North Carolina, the general assembly enacted this legislation which was in July of 1969.

There were two prominent cases that had been decided by the Supreme Court that it had to go by, that is Brown and Green and also the general assembly was guided by Sections 401 and 407 of the Civil Rights Act of 1964 which we think this statute embraces as it does embrace Brown and Green.

Now in Green as this Court suggested, of course that was a rather simplistic fact situation there where you had only two schools involved and the Court's suggestion as I recall in Footnote 6 that the easiest way to eliminate the dual school system there, was to draw a line down the middle of the county and all of the children in the eastern end of the county would attend the New Kent School and all of the children in the western end of the county would attend the Watkin School.

Now this we say was not necessarily a pronouncement but certainly a suggestion by this Court that a child be assigned or be allowed to attend not on the basis of race, but be allowed to attend a school nearest his home and we say that this is exactly what the statute does.

The statute does not allow any assignments as this Court prohibited on the basis of race.

All the children are allowed to go to the school nearest their home and we think this is the only reasonable way that this Court can approach the problem now before it.

I'd like to save some time for rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. Nabrit.

Argument of James M. Nabrit Iii

Mr. James M. Nabrit Iii: Mr. Chief Justice and may it please the Court.

The main theme of my argument is that the three-judge District Court which heard this case below is correct in holding that a portion of the state law, two sentences in it, the last two sentences in the second paragraph were violated -- the constitution by interfering with the school board's duty to desegregate the schools.

That Court held unanimously that this was the effect of the law as well as its purpose.

Let me begin by simply listing the matters, I hope to cover in my allotted time.

First, I would like to state a bit about the procedural history of this case and discuss some of the facts about school busing.

The factual background against which the statute is enacted, not against which it actually functions and in that connection, I should tell the Court that in Number 498, the parties have stipulated and the court below also considered that the entire record in the Swann case, which was argued yesterday was a part to be considered in the three-judge court case.

Third, I hope to discuss briefly the meaning of the statutory provisions and the various interpretations the parties have given of it and fourth, the main point why we think the statute violates the Equal Protection Clause.

Justice Hugo L. Black: Where have you printed these statutes so that I can see the exact part of it which you say is unconstitutional?

Mr. James M. Nabrit Iii: If you will turn Your Honor to the appellees' brief and there's Number 498, the brief for appellees', the first page of the argument which is -- it's quoted there in the footnote.

See the Footnote number eight.

Justice Hugo L. Black: Number what?

Mr. James M. Nabrit Iii: The footnote at page 20.

Justice Hugo L. Black: 20?

Mr. James M. Nabrit Iii: Page 20.

And the part that the court below held was unconstitutional.

Justice Hugo L. Black: And that is the part you are claiming, is that correct?

Mr. James M. Nabrit Iii: And then it's the only part that we attacked -- was the last two sentences in the second paragraph and they appear near -- over on 21 and then continuing in that footnote.

Justice Byron R. White: Beginning those two (Voice Overlap)?

Mr. James M. Nabrit Iii: Those two sentences.

I also hope, if I have time to -- well, in connection with the main argument about the statute violating the Equal Protection Clause, I think the -- particularly interesting, the contradictory positions taken by the parties because if I heard them correctly, Mr. Wagner representing the School Board stated quite clearly that he thought the school board's plan of desegregation as the board has presented to Judge McMillan defended in the Fourth Circuit, defended here by its own petition for certiorari and in its brief that the school board's plan says Mr. Wagner violates the Brown case and it's unconstitutional because he says it accomplishes too much desegregation.

That is indeed an amazing turn of events.

Justice Byron R. White: I heard him the same way except for the because clause.

That's not the reason he said he thought it violated Brown.

Mr. James M. Nabrit Iii: Well, no, but because of the technique that the --

Justice Byron R. White: Because of the compulsion of people to attend certain schools or be a -- based on their race?

Justice Thurgood Marshall: All he said that --

Mr. James M. Nabrit Iii: That's correct.

Justice Thurgood Marshall: -- was that in obeying the Brown decision in his opinion they went a little thing barred, that's all I understood he said.

Mr. James M. Nabrit Iii: Right.

Justice Thurgood Marshall: And I didn't understand you saying the abandonment any of the arguments --.

Mr. James M. Nabrit Iii: Well, I -- let me address that because I think that my point is, that his position is inconsistent and I hope to develop that in that part of my argument.

Justice Hugo L. Black: Well, Mr. Nabrit, I'm looking at the statute and -- so I want to know which part of those sentences you say is unconstitutional?

Mr. James M. Nabrit Iii: The court below held that the both of the sentences were unconstitutional because --

Justice Hugo L. Black: In that entire synopsis, no student --

Mr. James M. Nabrit Iii: Yes.

Justice Hugo L. Black: -- will be assigned or compelled to attend any school on account of race.

Surely it didn't hold that's unconstitutional, did it?

Mr. James M. Nabrit Iii: Yes it did, I think so.

That it --

Justice Hugo L. Black: No student should be compelled to attend or not attend a school on account of race was held unconstitutional?

Mr. James M. Nabrit Iii: Mr. Justice Black, the court below held that that sentence, the whole sentence was unconstitutional including that clause and the next clause.

Justice Hugo L. Black: Do you think that part of it is unconstitutional?

Mr. James M. Nabrit Iii: Yes sir I do because it interferes with the school board's -- it imposes blinders on the school board.

It says you cannot consider race in a context of a segregated --

Justice Hugo L. Black: Well, that's what the constitution says.

Mr. James M. Nabrit Iii: Well, --

Justice Hugo L. Black: And that's what we held.

You can't discriminate on account of race.

Mr. James M. Nabrit Iii: Well, but -- as I -- I understand that to be the argument, however --

Justice Hugo L. Black: We‘re done with that argument, I thought that is what we had held in every case and that's what your client had been insisting on in every case.

Mr. James M. Nabrit Iii: Mr. Justice Black, I understand the Brown case to hold that compulsory school segregation violates the Equal Protection Clause and that the statute, the court below held in North Carolina where they still have school segregation, prevents the school board from doing its duty of abolishing that discriminatory system.

Justice Hugo L. Black: But this --

Mr. James M. Nabrit Iii: It tells the school board --

Justice Hugo L. Black: But this --

Mr. James M. Nabrit Iii: It tells the school board --

Justice Hugo L. Black: This provision of the statute --

Mr. James M. Nabrit Iii: Yes.

Justice Hugo L. Black: -- simply says that there shall be no discrimination.

Mr. James M. Nabrit Iii: Well, the court --

Justice Hugo L. Black: -- the clause I've just read to you.

Mr. James M. Nabrit Iii: Well, the court below didn't understand it that way and that's not the understanding that the state court judges gave it or that --

Justice Hugo L. Black: Well, there's a saying that people can be compelled to go to a school or to refrain from going to a school because of their race.

Mr. James M. Nabrit Iii: Mr. Justice Black, I think we cannot understand that sentence merely on the basis of that first clause, it says --

Justice Hugo L. Black: Well at least that one is something and then if that's -- if the whole clause is held unconstitutional, I don't see any part of it can be based on that clause.

Mr. James M. Nabrit Iii: Well, the statute was on --

Chief Justice Warren E. Burger: Mr. Nabrit, are you distinguishing in the application of the statute between its application and the abstract of that sentence and its application in the context of a remedy for what was stricken in Brown?

Mr. James M. Nabrit Iii: That's right.

The statute was specifically designed to overturn Judge McMillan's order and that's a history and it attempts to do this by saying the state must be colorblind.

It cannot integrate the schools because it cannot take into account race at all in assigning students or in transferring and that it cannot do anything for a racial purpose in connection with assigning students.

If you can't, if you have as -- and if you have an existing system of all Black schools and all White schools, this statute says you can't do anything about it because you must be blind to the race of the students.

And that was the understanding that the three judges below gave to this statute and that was certainly its intent Mr. Justice Black.

Justice Hugo L. Black: Intent of whom?

Mr. James M. Nabrit Iii: The - that --

Chief Justice Warren E. Burger: You mean --

Mr. James M. Nabrit Iii: This is the way it's been applied by the North Carolina judges.

Although this is the way and this is its purpose, it's the way its applied by the North Carolina judge.

Justice Hugo L. Black: You're not I hope relying on -- have probing the mind of the legislature?

Mr. James M. Nabrit Iii: Not at all sir.

Justice Hugo L. Black: I can understand your --.

Mr. James M. Nabrit Iii: May I say Mr. Justice Black that on this issue, the federal courts have been -- below have been entirely consistent that this sort of evasion of Brown cannot be permitted that an artificial assertion of non-discrimination of trapped cannot be permitted to stand in a way of actually accomplishing a reform of the segregated system.

All the federal courts that have considered this argument have rejected it quite uniformly.

Justice Hugo L. Black: Well, I would of course reject to that from the beginning, absolutely.

Mr. James M. Nabrit Iii: And it's important that none of the argument on the other --

Justice Hugo L. Black: (Voice Overlap) by a subterfuge.

What you're saying is, can't be discriminated against by subterfuge.

Mr. James M. Nabrit Iii: And that the statute is a subterfuge and that's what Judge Craven held and the court below held that it was a subterfuge.

Let me state a few facts Mr. Justice Black about busing and let me begin by answering the question that you've asked twice about what is the law in this bus routes.

If you will turn to the petitioner's brief in Number 281, Judge McMillan made a specific finding on this ay appendix page 24 in the brief in Number 281, now the Swann case.

Justice Hugo L. Black: Page number 281?

Mr. James M. Nabrit Iii: At the -- page 24 of the appendix, Judge McMillan states, “The longest bus routes in the entire county are the routes by which four and five-year old kindergarten children are transported to child development centers.”

See, principles monthly bus report, defendant's Exhibit 63, the Pineville Child Development Center has one bus, number 297 which travels over 79 miles a day on one round trip with four and five-year old children, 79 miles round trip with four-year and five-year old children.

Mr. Justice Black, Judge McMillan made a detailed study of this subject of busing.

I have in my hand the exhibits which list every bus route in the county.

The drivers name, all the stops he makes, all the time, Judge McMillan's findings on this were based on an in-depth study of this busing system and of course in that paragraph there are descriptions of other buses.

That one I mentioned, the longest one was a kindergarten bus but of course there are other trips nearly as long involving the regular elementary class.

The same paragraph, he mentions another trip over 70 miles a day, a round trip others, 48 to 60 miles a day with five-year old children.

Bayne Elementary School, bus number 115, a bus over 60 miles a day on one round trip requiring two hours in the morning and two hours in the afternoon.

Justice Hugo L. Black: Did that --

Mr. James M. Nabrit Iii: Now this is last October before the plan.

Chief Justice Warren E. Burger: Did that -- the finding show -- did that finding show how far it would have been to the nearest school, nearer than the 79 miles trip?

Mr. James M. Nabrit Iii: The --

Chief Justice Warren E. Burger: Did it juxtapose those --

Mr. James M. Nabrit Iii: That -- that's the -- those -- the Bayne Elementary finding which is ordinary elementary school, the busing was based on the school board's zones which are not drawn on the basis of proximity but drawn on the basis of discretion, but nevertheless they are the zones.

The school board decides where it shapes its zones for its own purposes.

But in any event, this case has a complete record on the subject of the busing and the transportation system and all of those questions can be answered, the answers to all of those questions can be ascertained by the record.

Let me state just a few general facts about busing.

First it's wide spread.

In this nation 40% of all the children who go to school everyday ride school buses, 18 million of them.

That's documented in the amicus curiae briefs, the ex parte one by National Education Association.

It's also a finding in this record.

In North Carolina, 610,000 children a day, 55% of all the children ride school buses every day.

Justice Potter Stewart: But not --

Mr. James M. Nabrit Iii: They are not merely --

Justice Potter Stewart: But not for the purpose of creating a balance or ratio of race, religion or national origin, you don't claim that do you?

Mr. James M. Nabrit Iii: No, no, no, no.

Justice Byron R. White: That's what this is directed to.

Mr. James M. Nabrit Iii: Well, I was trying to state a few facts upon -- the background upon which this statute is enacted before I discuss its application.

These are not only children in the counties, they include city children.

The way the law is applied in North Carolina, the state up until last year paid for all children who bused in the county areas but also in those areas inside city limits, that had been annexed in the past 13 years, any area annexed since 1957 and these are exhibits I got out of the record room this morning which show that a large part of Charlotte had been annexed and these children are bused at state expense in the red area and of course all those outside it.

In addition, anyone who travels from the center to the outside is bused at state expense and anyone who travels in any direction.

Since Judge McMillan's opinion, the state has changed this regulations and now all children in the state of North Carolina under the current regulations, no matter where they live in, the city or the county are entitled to busing at state expenses they lived more than a mile and a half from school.

Justice Hugo L. Black: As I understood, I want to be sure quite about this, someone has argued as you are saying that the state would be without the power to pass a regulation doing away entirely with busing, the constitution would permit, is that your argument?

Mr. James M. Nabrit Iii: Mr. Justice Black, that argument is not necessary to --

Justice Hugo L. Black: It's our logic in this case --

Mr. James M. Nabrit Iii: It is -- it has not been made because we don't face any such facts.

Justice Hugo L. Black: I didn't see it.

Mr. James M. Nabrit Iii: However, if that were to happen, the inquiry would have to be whether or not, it had a racially discriminatory effect.

It wouldn't seem in neutral circumstances to be discriminatory to say, “Oh!

No one gets a bus ride.”

But just like the school closing in Prince Edward County, it might under some circumstances taking away busing have a discriminatory effect.

Justice Hugo L. Black: Well the reason I asked for it, I had always thought that was within the power of the state to operate schools or not as it so tendered without federal litigations and I would suppose that the State of North Carolina would repeal all its laws providing public schools that no one could insist that the federal constitution --

Mr. James M. Nabrit Iii: All this was --

Justice Hugo L. Black: And I think the same thing about busing.

Mr. James M. Nabrit Iii: The state's power is plenary unless it's the effect is to make a racial discrimination.

At that point the Equal Protection Clause would prohibit it and that requires an examination of a record and facts and we don't have that case but --

Justice Hugo L. Black: Well, I thought the state's power was plenary to determine whether or not it had schools.

Mr. James M. Nabrit Iii: That's --

Justice Hugo L. Black: I didn't think we have any --

Mr. James M. Nabrit Iii: Well, that that was the argument that was made where the -- in the Griffin case Your Honor where the school board abolished, they closed down all the public schools in (Inaudible) County.

Justice Hugo L. Black: But we found there was a discrimination now on account of not closing them all down.

Mr. James M. Nabrit Iii: Well, that's the inquiry I'm suggesting would have to be made whether or not it's discriminatory.

That's the only inquiry I'm suggesting.

The state's power is also plenary in determining the boundaries of municipalities but in Gomillion against Lightfoot, the court inquired as to whether or not that kind of power was used to get a discriminatory effect to deprive Blacks of the right to vote.

Justice Hugo L. Black: That was under Equal Protection --

Mr. James M. Nabrit Iii: That's the same kind of --

Justice Hugo L. Black: The equal protection?

Mr. James M. Nabrit Iii: That -- the equal protection, that's the only thing --

Justice Hugo L. Black: Under the state law.

Mr. James M. Nabrit Iii: That's correct.

Justice Hugo L. Black: What I was talking about was absolute abolition of public schools, I wouldn't think it could be any question about that.

A state's power to do that are absolutely to do away with buses.

Mr. James M. Nabrit Iii: In Charlotte-Mecklenburg, the board's own figures and this is at page 619A of the Swann record, the record in number 281 show 10,414 elementary children last year rode buses.

In other words, 42% of the total children bused in Charlotte were elementary children even though the elementary schools are ordinarily closer to home than the high school.

So the system was that we are dealing with as busing as an integral part of the normal educational program for elementary children as well as for high school children.

Now, this record tell -- I think dispels some of the misconceptions about how costly busing gets to be, the average state cost for a pupil for a whole year in the state of North Carolina is $23.40.

The cost in Charlotte-Mecklenburg is about the same, around $20.00 to bus a pupil for the whole year.

What's involved Judge McMillan found was a cost that amounted to about the operating expenses of the school, the Charlotte system for two days out of the year and that's the kind of finances we're dealing with in relation to the overall picture.

It's a 66 million dollar budget school system.

This is just two days a year out of it.

The busing plan that Judge McMillan ordered is as the Court knows in effect, Judge McMillan found that it went into effect and the plan we've been talking about for two days is an operation, it's functioning this morning, it has been for several weeks.

Under this Court's denial of the stay under the pendente lite rule of Alexander against Holmes County.

Judge McMillan found that the board had no need to make any additional capital expenditures in the current year because he found out that the last hearing in July, the board had in effect been hiding buses.

His opinion states and it's -- in that same opinion that I referred to you a moment ago Mr. Justice Black at page 18 of the Appendix to petitioner's brief in Number 281.

This is the August 3rd Memorandum, that the school board had in effect been -- not only been exaggerating its bus needs in all of the argument but had led the court to believe that they actually owned the 107 -- around a hundred less buses than they had.

And he found that their $5 million cost estimates that were banded on all over the nation including the papers filed in this Court last Spring were bordered on fantasy and he referred it to Alice in Wonderland and I was there and we had again in July, five days of testimony about these bus estimates and Judge McMillan's finding and he heard the witnesses and he saw these thousands of names on paper was indeed -- these are opinion statements about the busing were not worthy -- .

Justice John M. Harlan: Were any of those findings on the busing issue disturbed by the Court of Appeals?

Mr. James M. Nabrit Iii: No sir.

The Court of Appeals accepted Judge McMillan's findings based on a study of the record.

Justice Potter Stewart: Well, except the proceedings last summer of last July and August haven't been through the Court of Appeals yet.

Mr. James M. Nabrit Iii: Well, that's correct but his conclusion was that his original findings were essentially still correct based on all these new --

Justice Potter Stewart: But then he found some more facts --

Mr. James M. Nabrit Iii: That's true.

Justice Potter Stewart: -- about the buses that haven't -- and those that hasn't gone to the Court of Appeal.

Mr. James M. Nabrit Iii: That record is here and its printed and it was just filed recently by the school board and it's printed appendix in Number 349, this has the entire transcript.

Justice Potter Stewart: Right.

Mr. James M. Nabrit Iii: And many of the exhibits of the hearing.

Justice Byron R. White: I gather, experiencing the last couple of weeks is to confirm the (Inaudible)

Mr. James M. Nabrit Iii: But Mr. Waggoner's asserting some new facts, brand new facts this morning about accident rates and all that.

Justice Byron R. White: (Inaudible) they've got the buses, they barred the state --

Mr. James M. Nabrit Iii: Entirely correct.

Justice Byron R. White: You have to take in to account the -- .

Mr. James M. Nabrit Iii: That's correct.

Justice Byron R. White: Is that also on the next year?

Mr. James M. Nabrit Iii: Judge McMillan -- no, it does not.

Judge McMillan's finding was that they could establish the needs on the basis of actual practice with the buses that were available free of charge from the State Board of Education.

They'd have to buy them next year.

Of course, what one must understand in relation to that is that the school board -- that Judge McMillan's findings are based on what they needed to do.

But it's always been in the school board's interest to exaggerate this and to devise routes based on inefficient principles -- and all that there estimates based on running a less sufficient bus system than they were actually running and that's why they got all those inflated estimates.

Justice Potter Stewart: Mr. Nabrit --

Mr. James M. Nabrit Iii: That's the judge's finding.

Justice Potter Stewart: Mr. Nabrit, if you permit me to say so, I think this business about busing and whether it is 23 dollars and 40 cents throughout the State of North Carolina and $20.00 of per pupil per year in Charlotte-Mecklenburg, the county buses they have and how old they are and what the mileage is, it's of some interest but so far as I'm concerned, is really collateral and peripheral to the basic question that this case poses.

The first sentence of the statute, the sentence that -- the first sentence that was held on to be unconstitutional doesn't say anything about busing.

It just says no student shall be assigned or compelled to attend any school on account of race, creed, color, or national origin or for the purpose of creating a balance or ratio of race, religion, or national origins.

Now, that involves a fundamental question and that is it seems to me the fundamental question in this case.

And that question exists whether or not the children walk or go by horseback or public transportation or buses.

If you are right of course, buses are going to be needed if it -- where and if the distances are great but that's a rather peripheral to the basic question, isn't it?

Or am I all wrong when we get to the --

Mr. James M. Nabrit Iii: Well, I agree and what I want to talk about is the subject to -- next is the subject you are raising, I think it is not peripheral because of the arguments by the school board and the Solicitor General that in the Fourth Circuit opinion, the reasonableness doctrine depends on assessing all of these factors in some way and adding them up --

Justice Potter Stewart: Well, but that begins with the proposition.

This I appreciate is at least a tripartite controversy but the -- if you begin with the proposition that it's the duty of the school board to maximize compulsory integration to the extent that it is A; feasible or B; reasonable or C; humanly possible.

That's one thing but the question is whether that is the constitutional duty of a school board, isn't that the basic question?

Mr. James M. Nabrit Iii: Well, certainly and then Judge McMillan viewed it that way --

Justice Potter Stewart: (Voice Overlap) it's just a collateral issues.

Mr. James M. Nabrit Iii: Judge McMillan made all these detailed findings about the busing and the cost and all that at the request of the Court of Appeals at the time the stay was granted.

The court stayed this order and said, “Give give us detailed findings about this.”

But let's talk about the central issues in the statute.

The law prohibits assigning or compelling students on the basis of race.

That's the colorblind provision and also in the same purpose, assignment for the purpose of creating a balance or ratio of race.

Now the court below in its opinion held that this wasn't a legislative effort to limit school boards to either freedom of choice plans and other part of the statute or the so-called neighborhood school concept.

This is the basis on which the Attorney General and the court below defended the statute.

The decision below relies on this.

This is from the brief by the Attorney General of North Carolina about what the statute means.

It says the above quoted statute, general statute 115-176.1 is really nothing but the embodiment of the neighborhood school concept.

And as we will attempt to show, the neighborhood school is legitimate in legal school facility and should not be broken up or fragmented to correct racial imbalance.

This statute was designed obviously to eliminate transportation cost and permit the student to remain as near his or her home as possible.

Stated another way, the statute was designed to require that local school administrative units throughout the state operate as nearly as possible under the so called neighborhood assignment system.

Chief Justice Warren E. Burger: Well, standing right there, do you have any quarrel with that as a statement of legislative policy or school board policy?

Laying aside for a moment (Voice Overlap) --

Mr. James M. Nabrit Iii: My call is based on the Equal Protection Clause and only that.

Chief Justice Warren E. Burger: Laying aside for a moment, the situation where it has as its purpose to frustrate the mandate of Brown.

Mr. James M. Nabrit Iii: Well, the -- I agree with the court below.

It says, federal courts don't sit to review school board policies, legislative policies about how they allocate their resources.

Our argument is based only on the claim that this statute denies Equal Protection of the laws because it interferes with school boards in carrying out their obligations, their affirmative duties under the Brown case.

And in the Attorney General's brief -- in this court makes a frontal challenge to Green, it takes a sentence out of Green where this Court said there shall be -- there should be no White schools or Black schools, there should just be schools.

Attorney General's brief here takes a sentence out of Green and says that can never happen.

And that's pointed out in our brief in this case.

Justice Byron R. White: Is the Solicitor General filed an amicus brief in this case?

Mr. James M. Nabrit Iii: He has indeed and --

Justice Byron R. White: And either a -- 444, 498?

Mr. James M. Nabrit Iii: The Solicitor General filed a brief, Memorandum of the United States as amicus curiae in 444 and 498.

And it is my submission and he urges as we do that the court below should be affirmed.

However, it's my view that this position of the Solicitor General in this case is entirely inconsistent with the argument yesterday cause I understood the Solicitor General's argument yesterday to be that the choice before the court was between something called racial balance which he attributed to us.

And something that Solicitor General supported which was called the neighborhood school assignment system.

Now, the holding of the court below in the three-judge court case is that this statute embraces, embodies the neighborhood school assignment system and yet the Solicitor General's memorandum in the three-judge case says this, “In many cases, neither freedom of choice nor racially neutral zoning is adequate to disestablish the former dual system.”

We agree with that exactly.

It goes on to the stay.

Other steps such as pairing or consolidating schools, redrawing boundary lines, restructuring transportation routes or any combination of these may be required.

I cannot understand how someone who adheres to that position can contend that Judge McMillan's decision must be overturned.

I just don't understand how the two arguments fit.

I do understand why the Solicitor General has to adopt that view.

It's because this statute would also invalidate the HEW plan because the plan for Charlotte developed by the Department of Health, Education and Welfare embraces the school boards gerrymandered zones and goes further with them, it combines them into groups of schools, so that if the Solicitor General has not made the argument that Mr. Waggoner made for the school board that is on plan as unconstitutional.

But Mr. Justice White in questioning one of the counsels asked whether or not rezoning to promote integration changing the lines that -- by which the school board defines what a school's neighborhood is for the purpose of integrating the schools whether or not that violates the statute, and I understood counsel say that it did.

Justice Hugo L. Black: That would be a different lawsuit.

Mr. James M. Nabrit Iii: I think not.

I think that is precisely this lawsuit because --

Justice Hugo L. Black: Being with the Court -- we are now compelled in a general case like this.

We look into the question to determine whether if schools in this country have been put at the right places to --

Mr. James M. Nabrit Iii: No.

Not in the general sense but in the particular sense that the -- there is no escaping the fact that those choices, those decisions, those routine every day decisions by a school board about where the school goes, I mean, who -- the size, the grade structure, that is what -- those are the decisions that are used to manipulate these school systems and keep them all Black and all White so it is necessary to look at those techniques in order to stop the segregation, to stop the discrimination.

Justice Hugo L. Black: What would you require us to review the questions with reference to the constitutional validity of the state, wouldn't the school that just had been placed and somewhat -- case other than -- when directly raise that point, that's what I thought.

Mr. James M. Nabrit Iii: Well, I think the case does raise that point because Mr. Blakeney's clients went into the State Superior Court in Mecklenburg County and got an injunction which restrained the school board from carrying out this kind of stuff.

Justice Hugo L. Black: (Voice Overlap) they did not restraint them from building a school, did he?

Mr. James M. Nabrit Iii: He restrained them -- well, let's look at the terms of that.

Justice Hugo L. Black: Well, by this Court that if -- it's wrong, it would seems that the pattern probably be wrong all over the United States and we would have to -- our courts would be busy trying cases of whether schools are located at the right spot constitutionally.

Mr. James M. Nabrit Iii: Mr. Justice Black, that is why we submit that the test we urge for -- that the court order adopt is a test based on results, the test based on actually desegregating the system and that these other -- and that no one else in the case, not the Solicitor General, not the school board, none of the amicus curiae supporting their position are answering the questions that they rhetorically asserted it have to be answered as what is the unitary system, but none of them were saying how would -- giving any concrete basis for instructing a school superintendent or District Court how it is, he runs his school system so it won't be discriminatory and it can remove segregation.

Chief Justice Warren E. Burger: Mr. Nabrit, let me try this question out on you.

If this statute that you challenge here today had been adopted by the state on its admission to the union and enforced strictly from the beginning, right down the present time, would you have any -- would you have a quarrel with it?

Mr. James M. Nabrit Iii: If I leave out the whole history of state racial discrimination against Blacks in the country or in the state, --

Chief Justice Warren E. Burger: I said enforced it.

Mr. James M. Nabrit Iii: That the state has --

Chief Justice Warren E. Burger: If the state had adopted it and enforced it, there wouldn't have been any segregation, would there?

And then you would --

Mr. James M. Nabrit Iii: If the states had been colorblind from the beginning and we've never had slavery and we've never have racial segregation then I wouldn't be here.

Chief Justice Warren E. Burger: Then the statute [Laughter] it'd be would be all right, wouldn't it?

Mr. James M. Nabrit Iii: Well --

Chief Justice Warren E. Burger: If the statute was 200 years old strictly enforced right from the beginning?

Mr. James M. Nabrit Iii: That's right.

But the essence of my submission is to look at this statute as they exist in the world we know.

The world where -- the states have done everything they can, including the school board and they have resisted Judge McMillan's orders and everywhere they know how to keep racial segregation and this Court knows that history.

The Solicitor General referred to it yesterday in talking about Little Rock and all that but I disagree that it's all over.

This war against the Brown case is still going on, it's just in a much more subtle form and that's why we have to deal with these details about how school boards run their systems because they're not engaging in more sophisticated types of evasion.

That is what this case is all about.

Justice Byron R. White: Well, if this statute is unconstitutional, it's only because the constitution requires precisely what the statute prevents in the circumstances to this case.

You're saying the constitution of the United States requires assignments based on race in this case.

It requires it because past discrimination that as a matter of remedy, you would say that the constitution absolutely requires it.

Otherwise, I suppose the statute would be constitutional.

Mr. James M. Nabrit Iii: Well, that's correct about my main argument.

Justice Byron R. White: Or would you say or are you saying --

Mr. James M. Nabrit Iii: It's not correct about my other two arguments.

Justice Byron R. White: Or are you saying that the United States Court or any judge has got some or United States Court has got some discretion as to how it affects the remedy.

And that a state statute which purports to interfere with his discretion is invalid?

Mr. James M. Nabrit Iii: Right.

Justice Byron R. White: Which one are you saying?

Mr. James M. Nabrit Iii: Oh, I'm saying that and I am also saying --

Justice Byron R. White: That the constitution requires it.

Mr. James M. Nabrit Iii: I'm also saying -- well, I certainly see that.

But I also submit that the Brown case requires a result.

The Brown case requires an actual reform of the school system, so the constitution does require if that is to be accomplished in fact that the goal be achieved.

And it can be achieved --

Justice Byron R. White: You can say Brown says that racial discriminations in the school assignments are unconstitutional and we should have a remedy to the situation by making some more racial assignment?

Mr. James M. Nabrit Iii: I understood --

Justice Byron R. White: (Voice Overlap) Well, why didn't you answer yes?

Mr. James M. Nabrit Iii: Or maybe I didn't hear the question.

I understood the -- well, the answer is yes, but the Brown case requires something more that that's my only point.

The Brown case requires -- the Brown case held that the separate schools for Blacks were inherently unequal and had to be abolished as -- and it was not simply a decision based on the existence of a racial classification.

Now, this neighborhood school concept in the context of a system like Charlotte insofar as I've been able to tell in the context of all the school segregation cases in the courts now a days.

This neighborhood school concept is really a fiction.

Justice Hugo L. Black: Is what?

Mr. James M. Nabrit Iii: A fiction.

It certainly never existed in Charlotte.

No one in this case in Charlotte, certainly not the school board, not the HEW plan that the United States presented is proposing that pupils be assigned on the simple basis that Mr. Vanore stated, that is, “No one has proposed that the assigned pupils in Charlotte schools to the closest school that can hold them --

Justice Hugo L. Black: But suppose it did, would you think that as unconstitutional?

Mr. James M. Nabrit Iii: I would think that on the facts of Charlotte it's unconstitutional.

Justice Hugo L. Black: Would you think it'd be unconstitutional?

Mr. James M. Nabrit Iii: Yes sir.

Justice Hugo L. Black: But yet the Charlotte problem -- do you think it is unconstitutional to have schools whether the main objective is to have them close to the children in the surrounding community whether they call them neighborhood schools or anything else?

Mr. James M. Nabrit Iii: I have nothing against that policy and that policy is not per se unconstitutional.

But it does produce an unconstitutional result where the neighborhoods are racially defined by the state as in Charlotte or where --

Justice Hugo L. Black: (Voice Overlap) The problem is that the state has been racially defining schools, then that's a different problem to this.

If you are saying that they passed laws that are required people to concentrated in one section rather than another, I think you would admit that's quite a different lawsuit?

Mr. James M. Nabrit Iii: Well, they accomplished precisely that by a series of administrative steps in the small decisions, precisely then they defined the neighborhood racially --

Justice Hugo L. Black: (Voice Overlap) One of the relation is set down by laws of the state?

Well, they aren't?

Mr. James M. Nabrit Iii: Why?

This has really two aspects.

Yes, the --

Justice Hugo L. Black: What law of North Carolina?

Mr. James M. Nabrit Iii: There is no law applicable to Charlotte.

No racial segregation ordinance applicable to Charlotte.

But the same thing has been accomplished in Charlotte by the use of the -- whole record we made on the zoning, on the way that the black neighborhoods were treated differently in the zoning, on the way the public housing was built, the government and the way the urban renewal moved the people around.

Justice Hugo L. Black: (Voice Overlap) pretty big job to assign to us, isn't?

Try to rearrange the areas of all the nation where the people have naturally concentrated at one place because of poverty or because of wealth or because of something else.

Mr. James M. Nabrit Iii: Well, judgment -- Judge --

Justice Hugo L. Black: Isn't that more than a court order have to do it?

Mr. James M. Nabrit Iii: I think the choice is that we -- Judge McMillan made a finding that that's what has been going on in Charlotte so that the choice is, the choice --

Justice Hugo L. Black: But what's what been going on?

Mr. James M. Nabrit Iii: That the Government had been accomplishing residential segregation by these several methods in Charlotte.

So that the choice that gives us --

Justice Hugo L. Black: Well, then your complaint should be against what the Government has been doing there, wouldn't it?

How can you rearrange the whole country in such fashion?

Mr. James M. Nabrit Iii: We don't seek to.

We seek to integrate the schools on the simple thesis that schools, their residents --

Justice Hugo L. Black: Yes.

But do you think its good by challenging the place people live and not letting them have schools in their areas?

Mr. James M. Nabrit Iii: Well, the school board is not proposing to give them schools in their areas and they never have.

So that's not the decision that I have made or that the plaintiffs in the case have made but --

Justice Hugo L. Black: But I understand that you want to hold people miles and miles and miles in order to get an equal percentage of the races in the schools, that they don't.

Mr. James M. Nabrit Iii: Mr. Justice --

Justice Hugo L. Black: Is that right?

Maybe I'm just --

Mr. James M. Nabrit Iii: Well, I don't describe my position that way.

No sir, let's take a concrete example of -- let's look at an example of what Judge McMillan was faced with.

He's faced with something that -- on this piece of cardboard which we showed you yesterday, we just simply made tracings of a proposal about how you treat the pupils in this particular area and the red outline is the Government's proposal for this particular area and the black outline is the one Judge McMillan ordered and let me take it very specifically in an effort to show you not that something particular wrong with this -- not that somebody made a mistake about this particular thing but an effort to illustrate the principle that there really is no difference between this racial balanced idea that we are charged with and then neighborhood school idea that the others say, they are --

Justice Byron R. White: That's the neighborhood schools at the outlining districts that some part of the neighborhood?

Mr. James M. Nabrit Iii: This is the HEW Neighborhood School.

Justice Byron R. White: (Inaudible)

Mr. James M. Nabrit Iii: Oh!

Yes.

Justice Byron R. White: (Inaudible)

Mr. James M. Nabrit Iii: I understand that.

Justice Byron R. White: (Inaudible)

Mr. James M. Nabrit Iii: I agree with them Mr. Justice White.

I quote the HEW Neighborhood, the HEW Neighborhood Plan.

So, it's what it does.

The one that the Solicitor General supports.

There's a Black school here, down at this part I'm pointing to is called Lincoln Heights and there's a White school here that is called Dorieta (ph) and there's a white school here called Statesville Road and all three of them have grades one through six last year.

The school board constructed some zone lines in there, proposed the integration plan.

It left Lincoln Heights, a 100% black.

So the HEW proposed to cure that by combining all three into one big school zone, combining all three in to one big school zone and saying that children in the first two grades will go to Dorieta (ph) over here, children in grades three and four will go to Statesville Road and the children in grades five and six, even those white children that were here go to the Black school in the ghetto in grades five and six, alright?

Now, that is defended as neighborhood schools and this is a particularly large and non-compact example of this but this is neighborhood schools, HEW style.

Now, the Black --

Justice Potter Stewart: What was the school board's plan, vis-à-vis that that would be --

Mr. James M. Nabrit Iii: School board opposes this.

Justice Potter Stewart: Yes.

Mr. James M. Nabrit Iii: But you can -- I'm not trying to advocate this particular zone.

I'm tying to (Voice Overlap) --

Justice Potter Stewart: Nobody, nobody in this case say there really is advocating the HEW.

Mr. James M. Nabrit Iii: Yes, yes Your Honor.

The brief of the United States --

Justice Potter Stewart: And except the Solicitor General on a very unenthusiastic way as I understood it.[Laughter]

Mr. James M. Nabrit Iii: The Solicitor General's submission to be accurate about it is that the case ought to be remanded and Judge McMillan should understand the correct legal principle that that is a valid plan and the school board ought to be permitted that choice.

Justice Potter Stewart: Now the parties to this litigation until we got here, no court and none of the parties in their brief had very much good to say for the HEW plan.

I'm just trying to put that on you.

Mr. James M. Nabrit Iii: This really isn't just -- this --

Justice Potter Stewart: Nor does that the HEW plan purport to be a neighborhood plan either.

Mr. James M. Nabrit Iii: Let me be clear.

This is very much representative of what the United States Government is requiring all over the South because their principle is, the only way you integrate, its in the Solicitor General's brief, the only way you integrate is you combine -- is you rezone or you combine contiguous zones.

He has the three methods listed their in his brief, its combining contiguous zones and our point is that from the stand point of the actual practical operations of the school system of the actual practical effect on the child, this principle of contiguity doesn't have any meaning.

It's the same to the child whether he's bused across this intervening area or that you can draw a big line around it and he is bused the same distance.

Justice Hugo L. Black: I think it -- I think -- surely you're not saying, makes no difference to the child?

Mr. James M. Nabrit Iii: Well --

Justice Hugo L. Black: Might be separated from his brothers and sisters, he might be transported 15 miles, they have to go to a school, one of them is two miles away and one of them is 6 miles away.

I think, if there's something to the concept of the neighborhood schools, that's worthy of consideration in this Court, particularly and we have to divide while looking at maps.

Mr. James M. Nabrit Iii: Well, what I would suggest is that Judge McMillan said it precisely right when he said that the Neighborhood School concept whatever may be its value has no standing in the constitution to overwrite the constitutional duty of the school board.

It has no standing to block the board from performing its affirmative duty to change the unitary system.

If you assume that -- if you assume Mr. Justice Black that the neighborhoods are really natural and the people are voluntarily moved there --

Justice Hugo L. Black: Well, aren't they natural?

Mr. James M. Nabrit Iii: -- you still have say -- no they're not.

None on these findings but you still -- even if you make that assumption --

Justice Hugo L. Black: You mean, they find findings that they are artificial, the neighborhoods are artificial?

Mr. James M. Nabrit Iii: No, that the neighborhoods are racial.

That the neighborhood's -- well, that saying neighborhood system is the same as saying racial system.

It's not the same as saying non-racial and neutral system, that is the finding.

Justice Hugo L. Black: Well, now --

Mr. James M. Nabrit Iii: And that is basically --

Justice Hugo L. Black: I'm not saying to you sir that what I -- we understood is, we've been understating from the first case, if this plain discrimination on account of race take on emphasis, I think we should correct under the constitution but I -- it disturbs me, so I had to challenge the whole arrangement of the living practice as in the way of life that the people all over this nation.

Mr. James M. Nabrit Iii: Well, Mr. Justice Black, if we had ever seen in any of these cases a real neighborhood system based on every child going to the closest school system, and “to the closest school” then we might say that the judgment of the court is upsetting some established practice.

But we don't have that in Charlotte.

They've never had that in Mobile.

Justice Hugo L. Black: Don't have any schools or people who moved to places because they are close to a school?

Mr. James M. Nabrit Iii: It certainly happens that sometimes pupils attend the closest school but these city school systems are not operated on any kind of basis of strict proximity that when you got a 103 schools like Charlotte has, if it's -- that -- they're not just wrong that way.

Unknown Speaker: (Inaudible) case to this question (Inaudible) that you considered Judge McMillan's findings as to state action after 1954, after Brown, essential to that sort of a verdict?

Mr. James M. Nabrit Iii: No, Your Honor, not at all.

I take it by that, that you mean do -- you mean state actually refers to housing?

Unknown Speaker: Yes.

Mr. James M. Nabrit Iii: No, no.

The housing discrimination.

We have no --

Justice Potter Stewart: (Voice Overlap) state action imposed in 1954, as you come to this court with the history of racial deseg -- racial seg -- racially segregated schools up to 54, would you be defending this case as you are now, you had -- in the orders you are (Inaudible)?

Mr. James M. Nabrit Iii: Yes, I would provided I --

Justice Hugo L. Black: Certainly you would.

Unknown Speaker: (Inaudible).

Mr. James M. Nabrit Iii: But I -- but its because its not only the housing practices that are racial, the school assignment practice has it been racial ever since Brown.

It's the --

Unknown Speaker: Well, I just wanted -- if you're not taking a little more baggage, you don't have to do it.

Mr. James M. Nabrit Iii: The -- your observation is entirely correct that that is not essential to that.

That Judge McMillan didn't regard it as essential to his decision and we don't believe it so because the school assignment practices are -- the dual zones are using busing to keep the school segregated.

Busing children passed their nearest school to keep them segregated.

All of those practices are -- that -- Mr. Justice Black there is an exhibit in the opinion by Judge McMillan at page 1206A of this third volume of 281 which list the nine schools that the school board would leave all black.

And all of them but one, were either built since Brown or had additions put on them since Brown, or enlarged or improved.

So that -- what we're looking at is institutions constructed on all black segregated basis since Brown when Judge McMillan has dealing with the reality of life in a community where the school board has been engaging in all of these chicanery to keep school board -- the school segregated and it's his job to find a remedy for that and we suggest that the only administrable principle is not some -- you'll never get the schools integrated.

If you tell a district judge as to go -- develop a reasonable plans or operate on one of this verbal formulations that is based on something other than doing the job.

Justice Hugo L. Black: Well if you can show us, in any of these particular things, where the order has been approved which show in the record discrimination against the race, then I'll be interested in but I don't like this whole theory trying to condemn a whole practice and do away with what I considered to be a valuable part of our concise -- I believe its just traditional, of the neighborhood school idea?

Mr. James M. Nabrit Iii: Well.

Judge McMillan proceeded and precisely that kind of common law -- this tradition.

He said he was deciding this case on its facts and on Charlotte.

He wasn't trying to make law for the whole country.

He was deciding a case on the record beforehand.

It is a detailed the record.

It is the -- I'm sure the most detailed record on the subject of busing that in relation to school desegregation that's ever been made and then the suggestion that three ought to have a remand for some further proceedings it seems to me is a suggestion that not that the court clarify the law for the guidance of the school board but a suggestion that we have more confusion and more lack of clarity.

Chief Justice Warren E. Burger: Do you consider that Judge McMillan's findings with reference to the jury segregation arising out of racial covenants, zoning, I'm not speaking out of school zoning ordinances and regulations essential to its inclusions?

Mr. James M. Nabrit Iii: No, that was the question I thought I answered for Mr. Justice Harlan.

I said --

Chief Justice Warren E. Burger: Not --

Mr. James M. Nabrit Iii: Its not --

Chief Justice Warren E. Burger: The transfer could be consistent, why did you offer evidence on the subject and why did he make findings on it if its irrelevant?

Mr. James M. Nabrit Iii: Well, its because the court's traditional approached to this problem as state actions is to look at the whole factual pattern and then in all the background path and we don't rely on anyone factor and we certainly don't rely on anyone novel a -- for a state action approach where we've got all these conventional state action namely, school's run on a compulsory segregated basis right up until July 1969, the school system ran with 25 black schools.

Two thirds of the children on a freedom or transfer plan just like that in the Ray case, the Monroe case from Jackson, Tennessee, that was a companion of Green.

The -- so that the -- there's so much conventional state action.

We don't have to deal with --

Unknown Speaker: Pursuant to the Chief Justice's question, I understood that this post 1954 state action evidence was introduced and considered by Judge McMillan as bearing upon the question of whether these schools in the context of original rule -- an original dual system could still be regarded as racially identifiable?

Mr. James M. Nabrit Iii: Why -- certainly he thought it had some bearing on the matter, I mean, and I think that is correct but I do not believe its correct to say that the decision hinges on it or that it depends on it.

Unknown Speaker: That's the question on what to do first.

Mr. James M. Nabrit Iii: But let me -- if I may take an example, I mean, of the relevance of this kind of evidence, to the concrete one.

The two schools that HEW were going leave black were Oakland and Double Oak.

Double Oaks School is a school built right in the midst of a low income federal housing project.

That's the most dejure neighborhood in town.

Unknown Speaker: (Inaudible)

Mr. James M. Nabrit Iii: And the suggestion that -- that that's the school to be left all black seems to me contradicts the Brown decision.

Chief Justice Warren E. Burger: Counsel we have conserved some little time of yours to process our question and if after lunch there are some points that you wish to make that you feel you haven't covered on your argument in chief, we'll give you some additional time.

Mr. James M. Nabrit Iii: I appreciate --

Chief Justice Warren E. Burger: Five or ten minutes (Voice Overlap) how much you need.

Mr. James M. Nabrit Iii: Please the Court.

I would like to use an additional ten minutes if the Court will allow.

Chief Justice Warren E. Burger: Very well.

Mr. James M. Nabrit Iii: To -- just merely to state two additional arguments which are made in our brief and in the process I think add to my answer to the Chief Justice's question which suppose that this statute was adopted in an entirely neutral atmosphere, perhaps hundreds of years ago outside any context of -- a history of segregation and so forth.

The first of the two arguments is the one we set out in our brief in which the court below relied on based on the supremacy clause.

Now that argument of course would not apply to this hypothetical statute adopted in another environment.

The second argument I will make based on the principle decided in Hunter against Erickson and the lucid opinion by Judge Paul Hays last week involving the New York statute might apply in that other situation and I'm talking about that.

And I'd like to conclude by returning to what we mean by racially identifiable school.

Now, the supremacy clause issue is I think quite simple and quite fundamental.

It is that the statute constitutes a practical interference with the remedial powers of the district judge.

Even if we accept Mr. Waggoner's interpretation of what the statute means, that is true.

Mr. Waggoner says that the statute only applies after you have a unitary system and then when you do, you can no longer use race.

And that the statute forbids -- thus prohibits the school board from using race to go beyond the requirements of Brown.

You can go up to the requirements of Brown but not beyond it.

And practically what does that do?

What did it do in this case?

It put the school board in the position of having a federal judge who would enjoin them to come up to the requirements of Brown do the minimum -- to do at least the minimum necessary to comply with Brown.

And a state judge who would enjoin them and that you can't take a one step beyond it, that you can't go one inch beyond the minimum federal constitutional requirements.

Now, the statute is overbroad in general and vague as this is -- which sets up that kind of collision between the federal power and the state judge's power.

It is a practical interference with the remedial files of the federal courts as the courts below erred.

And the same thing was found in an Alabama case, involved -- which we have requited in the rear at page 29A of the brief of the appellees, a 1970 Alabama statute which the three-judge court in Alabama with Judges Guin, Thomas and Piedmont (ph) held unconstitutional on the same grounds.

It said, the legislature was trying to overturn the decisions of the federal court and under the supremacy -- on constitutional manner were -- they were trying to review the federal courts decisions about constitutional right in this case called Alabama against the United States and that the law was unconstitutional under the supremacy clause as well as under the Green case and the Brown case.

Now, -- so that -- but I don't think by making that argument on Mr. Waggoner's assumption that the statute is just neutral, I don't mean to suggest for a moment that we accept that interpretation of the statute.

The real meaning is the one that the Attorney General of North Carolina urged in the court below and that the three-judge court accepted and that the statute was intended to prohibit school boards from using this ordinary techniques of school administration such as busing, pairing, clustering and rezoning any of them if the purpose was to affect any ration on the basis of race, any kind of racial grounds.

Justice Hugo L. Black: Or perhaps --

Mr. James M. Nabrit Iii: Well, the words of the statute that the second clause of the first sentence we were talking and this-- North Carolina's statute is what I refer to Mr. Justice Black.

It's at page 21 of our brief and its that, no student shall be assigned or compelled to attend any school on account of race, creed, color and national origin.

That was the clause we talked about and it says or for the purpose of creating a balance or ration of race, religion or national origins.

That was understood, this is what the Attorney General and the court below accepted as embodying this limitation on the power of the court to reorganize the system and this is what its involved.

Now, the Hunter against Erickson point, I do not intend to argue at any length but merely to state the -- and the point is simply this, that the statute does make an expressly racial classification.

It says to a school board, you cannot for example bus children in order to racially balance the schools but you can bused them for any other purpose, you can bus children to segregate them by sex, you can bus them to any distance, to any age for any other reasons the school board might want to use it if the -- to save money to build the schools out, this is realistic, to build the schools out where the land is cheap or any of this kind of reason you can bus.

The only reason you can't use is busing for a -- for racial balance and in Judge Hays' opinion, doesn't presuppose any duty to integrate that its merely -- even if -- as he assume, there was no duty to racially balance as a constitutional manner.

There were the list, that the statute disables the school board from doing something that the black community is interested in getting, namely advancing the cause of racial integration in the schools.

Now, finally, our definition of the school boards duty under the constitution does not rest on a notion that racial balance is required.

We state them -- our view of the rule that the court order adopt very precisely in our brief in the Mobile which -- as the Solicitor General pointed out, we've adopted it in the Swann case.

It is that every black child is to be free from assignment to a black school in an identifiable racial minority school that every grade of his education and we define identifiable racial minority schools, not in terms of mathematics or percentages or any precise notion of a balance but in this terms.

The racially identifiable black schools are those which by reason of a very considerable disproportion or a very considerable racial concentration are conceived as designed to received black children.

The schools that are set aside for the black children, is what we're talking about.

And it does -- the definition doesn't rest on anything like a mathematical precision.

We recognize that a range of results or ratios which satisfy the definition of a school not identified racially.

The definition embodies both the concept of disproportion which everybody is familiar in the debate and also the concept of a considerable racial concentration.

On the idea of concentration refers to -- at where, even though a race is a very small part, they're all clustered in one school or in a particular school.

But the test depends in the final analysis and you can't get away form -- from it not on application of a mathematical rule but on the court's exercising judgment about whether the school in all the circumstances is one which is conceived as designed for black children as the separate segregated school set up as the institution, the principle institution of the segregated system, the principle vestige of the segregated system.

Thank Mr. Chief Justice.

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

Proceed.

Rebuttal of Whiteford S. Blakeney

Mr. Whiteford S. Blakeney: Mr. Chief Justice, may it please the Court.

Counsel on our end of the table have agreed that I may speak briefly and the few minutes that remained in the time that we were to divide --

Chief Justice Warren E. Burger: I think you have 13 minutes counsel.

Mr. Whiteford S. Blakeney: Thank you sir.

Chief Justice Warren E. Burger: If you find you'll need a little more, we'd extend that.

Mr. Whiteford S. Blakeney: Thank you sir.

I don't believe I will.

I would like to address my observations at this time if I may Your Honors to what seems to me to have emerged as the main focus of contention, that is this matter of remedy, remedial action to cure or correct or undo or dismantle a situation caused by, let us assume for the moment, caused by wrongful governmental action in the past or indeed wrongful governmental action presently existing, and may I take as my point of departure the question that the Chief Justice asked Mr. Nabrit earlier to this effect, whether he was arguing under Mr. Justice Black's questioning about the constitutionality of this statute on its terms, the Chief Justice put the question to Mr. Nabrit, are you contending that that wording is unconstitutional in its self or are you contending that it won't do.

It is invalid, its unconstitutional in its application to this factual situation.

And I understood Mr. Nabrit reply, it's the letter.

Now, I make bold to take the position, -- disposition Your Honors, I cannot conceive of any situation no matter what the presence of governmental action in the past or in the present may be in which any remedy can be utilized to redress a past constitutional wrong by imposing a new constitutional wrong upon anybody who objects.

Now, I understand upon that and I think that is constitutional gospel.

But let me develop that just a little more if I may, I say that on the question of determining whether or not there is or has been governmental action that is causing, producing a situation of compelled segregation, that is the true issue to be litigated in this respect if it can be found and this is essentially what are argued earlier.

If it can be found through a careful litigation in any case, that freedom is not being truly accorded now to the child, then whatever it takes to remove that governmental action, that is denying that child that true freedom today, that true free- by a true freedom I mean, freedom to go to school on non-racial basis, without regard to his color, without consideration of his race.

If that freedom is not being truly accorded to him, then that's what the litigation should be about in each in every case as it arises and they will of course arise still no matter what the decision here is.

But that should be the inquiry and the result should be sternly to root that out as has been said by this Court, root and branch, extirpated, that freedom genuinely must be accorded but Your Honors, it is not the course to take to say to him, we will now put you back on the road of racial compulsion rather see that he gets freedom, individual freedom.

Now, let me give an illustration to indicate further what I am speaking of.

Shall it be said to a Negro child for example today in a given school, the Negro child, let us say is attending a school that is convenient to his home and that's -- he prefers to go there, his parents prefer him to go there, they say so, they say so in the Moore case, this is where he wants to attend, shall school authorities be allowed to go to that child and say, because your parents were by law or governmental action forced to go here, now therefore, you are going to be forced to leave here for that because of that racial compulsion that was imposed upon them, we now will impose a racial compulsion upon you to go somewhere else that though you do not wish to go and it is only because of your race that we now take you and move you.

Or to the white child, shall governmental authority say to him today, because your parents attended this school, let us say in the past, in the neighborhood of your home, and at that time, Negro children were not allowed to come here.

By law, they weren't, therefore, you, the white child, must now leave here and go to another school you do not wish to attend and we send you away from here because you are white.

There must be a retribution effective here for what was, or let us bring it to the present.

If it be not another of retribution for the past but here is a condition of separateness existing today, we must correct the separateness.

Therefore, we must force you against your will and we will pick you by your color and sends you.

Now this -- it must be starkly called what it is, it is government compelling people, driving people on basis of race.

Justice Byron R. White: Mr. Blakeney, I take the case (Inaudible) no discrimination but it so happens that there are some white schools and some black schools in the city by whatever circumstance caused it, there are black schools and white schools and some black and white school.

Mr. Whiteford S. Blakeney: Yes.

Justice Byron R. White: And the school board says to itself, “We think we'll have a better educational result right across the board, people will come out better citizens if they're educated together.

So we are going to pair some schools.

We're going to make sure that all through -- all the grades education is furnished to blacks and whites together rather than separately.

Not because we're required to, not because there's any -- we have to give a remedy for anything.

We just think as an educational matter, it's going to -- versus the public interest to do it this way.”

So they go to your black child and say, you be -- you have been going to this school, but you're not going to this school anymore.

You're going over here to another school where you can go to school with whites and they have said to the white people the same thing.

I take it you wouldn't say that as prosperity?

Mr. Whiteford S. Blakeney: I would say this to that, Your Honor, that --

Justice Byron R. White: Well, is it -- yes or no?

Is it prescribed or not under -- and since it's the position you took a while ago?

Mr. Whiteford S. Blakeney: I think that the protesting child is entitled to an inquiry as to whether or not the hand that drew the boundaries and they decided where that school should --

Justice Byron R. White: All the school board says that we concede freely that the reason you aren't going here is because we want blacks and whites to go to school together.

Mr. Whiteford S. Blakeney: And --

Justice Byron R. White: And the -- this is a racial -- to that extent it is a racial reason for the change.

We want them to be educated together.

Mr. Whiteford S. Blakeney: Your Honor, if there is anything in the natural geographic situation consistent --

Justice Byron R. White: Nothing whatsoever in the geography that would indicate and they said, this used to be the first sixth grades here but it isn't going to be the first sixth grades anymore, its going to be the junior high school and you're going to have to go to grade school over here with all the rest of the -- with all the other people who are going to those grades.

Mr. Whiteford S. Blakeney: Yes.

And my answer, Your Honor is, that if the school board was formally utilizing or at anytime utilizing natural geography and then left it, departed from it for no reason other than to force people against their will, on basis of race then the objector can --

Justice Byron R. White: Well, the school board says, “We are -- we're going to force you against your will to be educated with members of the opposite race.”

That's our decision, we're going to force you to do that, we think its better for education, would -- you would say that unconstitutional?

Mr. Whiteford S. Blakeney: I would say Your Honor that the sole test is what Brown laid down namely, look to inquire, look to see, is the action of Government here, is it bottom the point, shaped according to race and race alone, race alone --

Justice Byron R. White: Well --

Mr. Whiteford S. Blakeney: -- then it cannot be.

Justice Byron R. White: Well, the only -- the school board had really concedes, the only reason we're making this chain is to make sure that blacks and whites go to school together.

Mr. Whiteford S. Blakeney: Race alone -- then Brown does not permit it, Your Honor.

Justice Byron R. White: Would you say that that's critically your position?

Mr. Whiteford S. Blakeney: In this case?

Justice Byron R. White: Yes.

Mr. Whiteford S. Blakeney: We of course rest upon the exact facts of this case but the proposition generally --

Justice Byron R. White: But what if you are wrong on that, that a school board could do what I just described?

Mr. Whiteford S. Blakeney: Then in this case they have not done so Your Honor.

Here, it is not the situation you've just described.

Here --

Justice Byron R. White: But lets assume the school board could do what I have described, consistently with Brown on the Fourteenth Amendment.

Could -- does that make any difference in terms of your argument about the acceptability of this order of the District Court in this case?

Mr. Whiteford S. Blakeney: I would say Your Honor where the facts are as here admitted, namely, we drew these lines for no reason except to include blacks or exclude whites or vice versa, we draw them for no reason than except that, it was not educational purpose that motivated us or move does here.

It was not that, this is conceded here in this Moore record, these lines were drawn, these moves were made, these people who are being sent here and there not for educational reasons but for racial reasons.

Justice Thurgood Marshall: Mr. Blakeney, when was this bill passed, on ‘69?

But no busing (Voice Overlap) --

Mr. Whiteford S. Blakeney: The statute in question?

Justice Thurgood Marshall: Yes, that the no busing bill, what month?

Mr. Whiteford S. Blakeney: Yes.

In the spring of '69, early ‘69.

Justice Thurgood Marshall: Well, suppose that same bill had been passed in ‘55, we wouldn't have this problem, would we?

Mr. Whiteford S. Blakeney: We might indeed still have the same problem, Your Honor.

Justice Thurgood Marshall: Well, isn't there a difference between when you passed this bill or do you admit that this bill was passed for the expressed purpose of upsetting the judgment of the District Court?

Mr. Whiteford S. Blakeney: No sir, the District Court orders were entered a year after this statute was passed.

Justice Thurgood Marshall: Well, why was it passed?

Mr. Whiteford S. Blakeney: This statute was passed to express the policy of the state as being the same as the decision of this Court in Brown.

Justice Thurgood Marshall: Well, it was after the '65 decision of this Court, wasn't it, the District Court?

Mr. Whiteford S. Blakeney: The District Court in ‘65 said that Charlotte-Mecklenburg was a non-racial system.

Justice Thurgood Marshall: If I was --

Mr. Whiteford S. Blakeney: And being operated non-racially.

Justice Thurgood Marshall: Well --

Mr. Whiteford S. Blakeney: And the Circuit Court upheld it.

Justice Thurgood Marshall: Well, yes it's obvious it was after '65 because of the '69.

Mr. Whiteford S. Blakeney: The statute was in 69, yes sir.

Justice Thurgood Marshall: And don't we have to consider it in that context.

Mr. Whiteford S. Blakeney: All I --

Justice Thurgood Marshall: Not just as an ordinary statute that was passed 80 years ago?

Mr. Whiteford S. Blakeney: Well, whatever context it be -- context would be considered in, Your Honor.

The point is this, this statute said, “The State of North Carolina adopts as its policy, this principle specifically from here on namely, children shall not be barred from a school on account of race and they shall not be assigned to a school on account of race.

That's all it said and that's all we ask enforcement of and that's all that our injunction said and the only reason we entitled the enforcement of our injunction is because Judge McMillan has ruled the opposite.

He has said, contrary to Brown, he has said, “Children, you must go because of your race now into the schools where I send you.”

That is what we complain of Your Honor.

Chief Justice Warren E. Burger: Thank you, Mr. Blakeney, Mr. Waggoner, Mr. Vanore.

Thank you Mr. Nabrit.

The case is submitted.

Featured:

Jenkins v. Mckeithen - Oral Argument

Thu, 23 Aug 2012 18:15:36 +0000

Case:

Jenkins v. Mckeithen

Media File:

548_19690325-argument.mp3

Related Transcript:

548_19690325-argument

Transcript:

Argument of J. Minos Simon

Chief Justice Earl Warren: Number 548, Roderick Jenkins versus John Julien McKeithen et al.

Mr. J. Minos Simon: Yes.

Chief Justice Earl Warren: Very well.

Mr. Simons you may proceed with your argument.

Mr. J. Minos Simon: Mr. Chief Justice, may it please the Court.

The case presents for the consideration of the Court, the validity of the state statute enacted by the 1967 legislative session of Louisiana and the issues presented are composed and framed by the pleadings in as much as the lawsuit instituted by the plaintiff was dismissed in connection with a motion to dismiss filed by the defendants in this case.

The decisions relies upon the holding of this Court in the case of Hannah versus Larche which involved an interpretation of the Commission on Civil Rights or the Civil Rights Commission that was enacted by Congress recently and also partly relies upon a decision of the highest court of the State of Louisiana interpreting or given its own interpretation of what this Court held in what is the effect of the particular statute in question.

And that decision was made, rendered in Martone versus Morgan which is before this Court on rehearing.

It's docketed on -- under Number 216 of the 1968 term of the Court.

The plaintiff in substance complains that the Act as a matter of law is unconstitutional and also as administered against him.

The plaintiff alleges that he is a member of a trade union and that the Act in question has been administered discriminatorily against him and members of the union in question resulting in repressive action.

I submit to Your Honors that the Hannah decision did not involve the type of legislation that is involved in the case before you.

And I think perhaps a very quick reference to the essential structure of the Commission that was created by this Act as well as its function we illustrate the point that I am emphasizing at this time.

The Act was passed as an emergency act in the State of Louisiana and apparently resting under the allegation that there were some labor strife in the community of the state capital of Louisiana.

Now, the legislator in the enactment of the statute created what is designated as the Labor Management Commission of Inquiry.

Significantly, this agency or this Commission operates in an ad hoc basis.

It operates only when the Governor of the State demands or request that it operates and it investigates only in that area outlined and delineated by the Governor himself in requesting the investigation.

It's significant to point out that all of the officials of the State Governor from the top to the very bottom, every employee, every agency, every department, every commission are impressed to do cooperative service with the members of this Commission by virtue of the provisions of Section 880.6 sub-paragraph (d).

I should like to also emphasize that the investigative forces of the Commission can be assigned to the state police and during that assignment, they have all the powers of state police.

The Commission itself has endowed itself or has been endowed with plenary powers of subpoena.

It could take depositions anywhere in the United States and also it may compel obedience to its orders through the process of contempt proceedings.

Equally significant is a fact that this Commission expressly does not have any power or authority or jurisdiction to investigate the whole hearings or seek to ascertain the facts or make any reports or recommendations as to any of the strictly civil aspect of any labor problem or dispute.

It is limited exclusively to the -- to investigating and determining the existence of any criminal law violations both of the state and the federal laws that may occur in the area of labor management relations.

Not only this, but it must conduct public hearings as to any such inquiry.

It can conduct or hold executive sessions but then only on the request of one commission member who in his opinion may feel that there may be a defamatory content or incriminatory content to the investigation.

However, it has full powers I stated to bring all witnesses before it, to interrogate these witnesses as to the existence of any crime whether they are of federal or state origin.

These hearings must be public and furthermore, it is charged with the responsibility of making findings and these findings relate to the existence of or probable existence of criminal law violations and also to pronouncing official judgment when individuals who may be involved in the criminal law violation in question relating to labor management offense.

Not only is this Commission under the mandatory duty of making these public findings but in addition to that, this Commission is under the mandatory duty of publicizing these findings.

So that and then furthermore, after it has conducted these public hearings, after they had made these public findings and after there's publicize these public findings, it then becomes its mandatory duty to report its findings and recommendations to “proper federal and state authorities charged of the responsibility for prosecution of criminal offenses."

I submit Your Honors that this piece of legislation establishes a public body that has: one, an accusatory function; two, that it must make and it can make official or pronounced official judgments on individual and that it must publicized both the findings as to the existence or probable existence of criminal conduct and as to the individuals who may be involved and that furthermore, that this is the part of a criminal process.

Now, essentially, it is an inquiry and to blame workers if the authorities or the authorities charged of the responsibility of instituting criminal proceedings themselves should not decide to do so.

The Commission has the authority to direct the chairman to proceed directly with the filing of such criminal charges both of the federal and the state authority.

And also the Commission may request to the Governor, request the Attorney General to utilize all the powers of its office in the supervision of all the district attorney throughout the state to carry out the recommendations and the findings made by --

Justice Byron R. White: But I take it in the long run, as far as filing of charges is concerned that the action of the Commission is only a recommendation and they can't themselves effectively file a -- they can file a complaint with the law enforcement officer I suppose like any citizen can but they can officially launch a criminal action.

Mr. J. Minos Simon: The case is not in the technical sense of the word.

Justice Byron R. White: You mean the law enforcement officer still has to make his decisions whether actually to file a charge than is it to the criminal proceeding?

Mr. J. Minos Simon: That's correct Your Honor.

Of course, my position is by then that's somewhat in anticlimactic because the individual involved has already been found guilty by the Commission and his guilt it was preceded by a public hearing where --

Justice Byron R. White: Well, the Commission has arrived that it's opinion of the matter I take it but it certainly doesn't bind the law enforcement official I take it.

Mr. J. Minos Simon: I'm sure it doesn't bind the law enforcement official technically.

Justice Byron R. White: It doesn't even bind him to file a charge.

Mr. J. Minos Simon: It doesn't even bind him to file a charge but I'm sure that in the ordinary affairs of public government where that same district attorney by virtue of the provisions of the statute himself is impressed cooperatively as a member of this Commission.

In other words, he must cooperate with his commission.

Every state or officer, every employee of the State of Louisiana are impressed cooperatively into service with this Commission.

Justice Byron R. White: Does Louisiana use a grand jury?

Mr. J. Minos Simon: Yes, sir, Louisiana does.

Justice Byron R. White: I suppose there are some crimes that require an indictment by a grand jury?

Mr. J. Minos Simon: Murder is one of them.

Capital offenses require that otherwise, the district attorney may file charges involving anything short of capital offenses.

Justice Byron R. White: Well, I suppose then that the grand jury might reject indicting someone even though the Commission had recommended it.

Mr. J. Minos Simon: I'm sure that's a possibility, Your Honor.

But as a practical matter, with all of the prior publicity with the public condemnation that attaches to the individual and to the crime involved --

Justice Byron R. White: Do you suggest that as a practical matter, no prosecutor could afford to reject one of these recommendations in so far as filing the complaints?

Mr. J. Minos Simon: It would be my judgment but it would be hazardous position for him to assume.

He would have to be very courageous, independent-minded public prosecutor to resist and repel the force that would be generated by all these prior publicity because this is an open hearing.

While the Commission may conduct executive hearings, it cannot refer to that or use that evidence as part of its findings unless all that evidence heard in executive hearing is heard anew in a public hearing, and of course during these public hearings, you have the television people, they are with their cameras writing their way and publicizing all that is going on before the Commission.

And furthermore, there are no effective rules of evidence, of meaningful rules of evidence.

The Commission hears anything, hearsay evidence, opinion evidence, innuendos, just anything it chooses to hear it hears because there's nothing to regulate the scope and the character of the evidence which it brought forth.

Justice John M. Harlan: (Inaudible)

Mr. J. Minos Simon: Not -- no sir, he wasn't summoned.

The companion party in this litigation was in the lower court if Your Honor please.

I'm sorry, Your Honor.

Mr. Jenkins' interest is number one, that he is a member of the labor union which has been singled out by the officials who have administered this Act.

The pleadings will indicate that Your Honor and I stated the issues are composed and framed by the pleadings.

This was dismissed on a motion by the defense to dismiss.

The pleadings state that he is a member of Teamsters Local Union No.5.

Yes, in our investigation if Your Honor please, he has been charged with four separate offenses in connection with the investigations and he charges all -- pardon Your Honor.

The charge was in the name of the district attorney of one of the parishes of Louisiana.

However, it was initiated by the Attorney General who was acting in cooperation wit the Labor Management Commission of Inquiry.

Justice John M. Harlan: (Inaudible)

Mr. J. Minos Simon: Yes sir, essentially.

Yes sir.

The rationale of the entire investigation, if Your Honor please.

And furthermore, he charges that that these charges against him, if Your Honor please, were knowingly -- were filed by the officials when they knew that they were false charges and they knew that he was not involved.

He has attempted to get a hearing before the state courts of Louisiana and he has been unsuccessful and that's all that were cited in this matter.

Justice John M. Harlan: Is there anything that can (Inaudible)?

Mr. J. Minos Simon: I have -- I think the implicit important pleading is that he will be --

Justice John M. Harlan: (Inaudible)

Mr. J. Minos Simon: Well, he didn't allege that he had been -- that he had done something or something that happened which actually did not occur, if Your Honor please.

But what he does allege which is of great significance, I think, is that this Commission has embarked upon a course of conduct designed in purpose to destroy the labor union to which he belongs by maligning it, by maligning its members, scandalizing them, by attempting to destroy this labor union and discredit all of its members.

Now, I think Your Honors have recognized in your several decisions that the right to belong to a labor union is a constitutionally protected right under the First Amendment.

And furthermore, I think you've held that the right to belong to a -- or to belong to an association and the right to be free from defamation is also a constitutional protective right that one has and to that extent then we show injury to a constitutionally protected right.

Justice Potter Stewart: It's the other way, it's the right to defame, that's the constitutionally protected right.

Mr. J. Minos Simon: Pardon, sir?

I'm sorry.

Justice Potter Stewart: The right to defame that's been constitutionally protected not the right to be protected from defamation.

Mr. J. Minos Simon: I don't know that I interpreted the decision of this Court that way but in the Joint Anti-Fascist committee decision of this Court, I think the Court expressly held --

Justice Thurgood Marshall: Did Mr. Jenkins hold any office in the union?

Mr. J. Minos Simon: It's not alleged but I think, he did at one time, Your Honor.

I'm not certain.

Justice Thurgood Marshall: Well, it's not alleged.

Mr. J. Minos Simon: No sir, it isn't alleged.

Justice Thurgood Marshall: Well, is his interest any greater than all of the members of the union?

Mr. J. Minos Simon: It's greater in the sense that he has been directly attacked.

Justice Thurgood Marshall: Have others been attacked?

Mr. J. Minos Simon: Pardon, sir?

Justice Thurgood Marshall: Have others been attacked?

Mr. J. Minos Simon: Oh!

Yes, sir.

There are many others.

Justice Thurgood Marshall: Well then, how is his interest so great to get some standing to attack the statute?

Mr. J. Minos Simon: Well because he's -- he has individually been attacked, if Your Honor please, because his right to belong to a union has been impaired.

His right to have a collective security of association in his economic existence has been impaired and is threatened to be destroyed.

Justice Thurgood Marshall: That's in this allegation?

Mr. J. Minos Simon: Yes sir, Your Honor.

Justice Thurgood Marshall: I didn't see that, where is that?

Other than generality?

Mr. J. Minos Simon: Pardon, Your Honor?

Justice Thurgood Marshall: Other than generalities?

Mr. J. Minos Simon: Well --

Justice Thurgood Marshall: Well, it's alright, I'll find it.

Never mind.

Mr. J. Minos Simon: It expressly --

Justice Potter Stewart: Pursuing a little more of the line of inquiry of my brothers Marshall and Harlan, I -- the complaint in this case, you say this case was in the pleading, as I understand it.

Mr. J. Minos Simon: Yes sir, Your Honor.

Justice Potter Stewart: The complaint appears in the appendix page 1 through 14 and I'm interested in knowing where it is alleged there the interest or the impact of this plaintiff with respect to the -- with respect to the Commission.

Mr. J. Minos Simon: We have a supplemental complaint also.

Justice Potter Stewart: Well, maybe I missed it and I certainly don't want to cause you to sit there and sum through the brief and I'd find it but I -- but that is at least for me a rather important factor in this case.

Mr. J. Minos Simon: May I point out paragraph 10 of the original complaint.

The complainant alleges that there is no facts or legal basis whatever for the filing of such criminal charges against your complaint.

Complainant alleges that such criminal charges were filed against him to inflict summary punishment upon the complainant solely because he is a member of Teamster Local Union No. 5 and accepted from there --

Justice Potter Stewart: But those were criminal charges initiated in the ordinary way by the State of Louisiana.

Mr. J. Minos Simon: No, sir it's not in the ordinary way.

As a result of the conspiracy, alleged conspiracy among the employees and representatives of this Labor Management Commission of Inquiry whom it is alleged have singled out this particular union for repressive action.

Furthermore, we allege in the supplemental petition that they have singled out six officers of the union for murder.

Justice Potter Stewart: For murder?

Mr. J. Minos Simon: Yes.

And we have a supporting affidavit from an undercover agent of the Labor Management Commission of Inquiry that we attach to the supplemental petition.

Justice Abe Fortas: Who are the members of this Commission?

Mr. J. Minos Simon: We have -- there are -- I can't recall them by name Your Honor but --

Justice Abe Fortas: Is a dean of the law school, one of them?

Mr. J. Minos Simon: Yes, two -- one dean of a law school.

I think the chairman was another dean of law school, he was a banker.

In fact, the lower court commented on the fact that they were involved and the implication was that because of their position, it was unlikely that they would engage in a conduct described in the complaint which suggest that this is a --

Justice Abe Fortas: It's not -- it's not an everyday occurrence, is it?

Mr. J. Minos Simon: Well, of course, we speak also of vicarious liability, if Your Honor please, because under Pape versus Monroe, Your Honors have applied the civil right statute vicariously or liability of it vicariously and we speak of that context.

We didn't -- we didn't necessarily speak that the officers were directly involved but we have serious charges and I'm satisfied that the plaintiff can substantiate these serious charges with credible evidences in support of them.

Justice Byron R. White: Now you -- you don't contend that your client's own right to be represented by counsel was violated, do you agree?

Mr. J. Minos Simon: I'm sorry, I didn't not understand, Your Honor.

Justice Byron R. White: Well, what constitutional rights of your clients were violated here, his right to counsel, his right to cross-examination or what?

Mr. J. Minos Simon: He was not -- he was not called before this Commission and it didn't become a past fact that he was denied of this but he is one who has been singled out for this repressive action.

Justice Byron R. White: So what constitutional provision do you invoke here then?

Mr. J. Minos Simon: Well, we invoke this constitutional provision because of his material interest in this litigation, because this state agency seeks to destroy his union and his membership in it and consequently his right to economic security and because they are daily defaming him as such in that capacity.

He's been denied of a constitutional secured right.

Justice Byron R. White: What -- what -- What?

Mr. J. Minos Simon: And therefore, he has an interest to challenge the statute and the challenge is this Your Honor.

Justice Byron R. White: Yes, what kind?

Mr. J. Minos Simon: The challenge is that this Commission is authorized: number one, to function as an accusatory body; number two, to accuse him and anyone else of being a public --

Justice Byron R. White: What in -- what constitutionally --

Mr. J. Minos Simon: -- without the right --

Justice Byron R. White: What's the constitutional right?

Mr. J. Minos Simon: That's correct.

He has without right to the assistance of counsel, without a right to examine or cross-examine witnesses appearing before that Commission, without of course the right of having definable standards of guilt or innocence before the pronounced of guilty of any offense, and without the right to have the application of meaningful rules of evidence.

I think implicitly, the Hannah decision is a conclusion by this Court and certainly the Joint Anti-Fascist Committee that no public body can defame an individual in this manner, can destroy him, unless you accord to the individual the right of confrontation, the right of cross-examination.

Justice Byron R. White: Well, the grand jury can indict somebody and never have him before or let him cross-examine witnesses or --

Mr. J. Minos Simon: If Your Honor please, the grand jury do not --

Justice Byron R. White: Are you challenging the grand jury?

Mr. J. Minos Simon: No, sir.

I'm not -- I don't have that burden.

The grand jury does not conduct a public hearing.

It does --

Justice Byron R. White: Because they indict somebody which they can charge him of the crime.

Mr. J. Minos Simon: Well, if Your Honor please, this is not -- the ultimate charge in itself is not the gravamen of the complaint.

It is that there's a public pronouncement of guilt.

One is branded as a public enemy, preceded by a public hearing where persons are sworn.

Whether there's no compliance with the rudiments of fair play and due process, there are no meaningful rules of evidence and then after he is found guilty as such and that guilt is publicized.

And that guilt, and that finding forms part of a process of a criminal prosecution because the whole objective, the whole aim, the whole purpose of the hearing is to bring about the criminal prosecution of an individual after he has been found after he has been found guilty of the charge that's ultimately is alleged against him.

If --

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: I'm sorry Your Honor I didn't hear you.

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: I don't think it would make a substantial difference.

I think that any time --

Justice Abe Fortas: Well, suppose a legis -- may I intervene I beg your pardon.

Well, suppose a legislature said that we're conducting an investigation not for law making purposes but for the purpose of making a determination as to whether somebody has violated the criminal law.

Now, isn't that the gravamen of your complaint here?

Mr. J. Minos Simon: No, sir, Your Honor because --

Justice Abe Fortas: That this investigation that this committee set up not merely to investigate but to make and publicize a determination as to criminal offense and then to report that in so many words.

The statute says that in so many words, doesn't it?

Mr. J. Minos Simon: I think the statute goes one step farther than that if Your Honor please.

It not only states that this is what this Commission has set up to do, to investigate whether or not laws have been violated but furthermore, this Commission must make a public finding.

It must make findings that directly affect the rights of individuals.

Justice Abe Fortas: Naming persons.

Mr. J. Minos Simon: Naming persons.

Justice Abe Fortas: Now suppose I want to get back to Justice Harlan's question.

Suppose a legislative committee were set up and for this precise purpose that is to say to ascertain whether criminal laws have been violated and to name specific persons for that purpose.

Do you or do you not consider that that would be within the legislature's constitutional prerogative?

Mr. J. Minos Simon: I believe that in that context where there's no purpose to gather evidence for the purpose of enacting legislation or their remedial character where the sole function is to make an official for public judgment as to guilt or innocence of citizens.

I think that in that context, even if the legislature is acting, that the rigorous demands of due process must be complied with, that the individual have the right to cross-examine witnesses and have a right to the effective assistance of counsel and all of the panoply of due process that is envisioned by the Fourteenth Amendment of -- to the Constitution.

But this is not the end product or the end result or the ultimate purpose of this particular legislation.

They go one step further.

They have a mandatory inescapable duty of then proceeding to present this to the state and federal authorities charged with the responsibility of instituting criminal proceeding.

Now, this is far removed from legitimate legislative investigation where evidence is gathered.

No formal judgment of guilt or innocence as pronounced but evidence is gathered to be called and sifted and to be considered for the members of the legislature for the purpose of attempting to this due remedial legislation.

This is not involved in this particular case.

The whole purpose is to first, publicly condemn and that's preceded by a formal hearing where the oath is solemnly told and then there is condemnation and not only condemnation but there is an additional step where the committee, the executive committee will then go forward and file and present this to the authorities charged with the prosecution of criminal law violations.

In addition to this it has the authority itself to go forward and file these charges.

Justice Abe Fortas: Well, I know but all --

Mr. J. Minos Simon: What else must (Inaudible)?

Justice John M. Harlan: (Inaudible)

Mr. J. Minos Simon: They make their recommendation and their findings to the proper authorities.

Justice John M. Harlan: They publish it to the world.

Mr. J. Minos Simon: They publish it to the world.

No question about that.

Justice John M. Harlan: (Inaudible)

Mr. J. Minos Simon: Yes, sir.

It's an inescapable mandatory duty.

They must publicize their findings and all of the evidence upon which their public -- their findings are based must themselves be public.

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: But I think this goes one step further that they actually have the power to say who is guilty and who is not guilty.

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: Well, I'm not familiar with the decision that Your Honors referred to except to say that --

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: Beyond any question, yes.

Beyond any question I think that's what it should be done.

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: Yes, sir.

That's correct, sir.

That's correct.

Because -- and of course, the result of harm is aggravated by the fact that this resides exclusively in the Executive Branch of Government where you have a system of laws in the states and the other states where these matters are handled either by the grand jury in a private discussion where no one publicized as such.

There's no evidence to show his guilt.

The whole State of Louisiana says it's a jury while this individual is being formally accused of crime and is actually found guilty of crime.

Justice Potter Stewart: You have a grand jury presentments in your state?

Mr. J. Minos Simon: We do, Your Honor.

Justice Potter Stewart: As contrasted with indictments?

Mr. J. Minos Simon: No sir, Your Honor.

We have indictments.

Justice Potter Stewart: Well, do you or don't you?

Do you have presentments or don't you?

Mr. J. Minos Simon: I'm not familiar with presentment but all I know indictment is the only thing we have.

Justice Potter Stewart: This was -- how about the -- what's this conspiracy to murder business?

That's in the amended complaint?

Mr. J. Minos Simon: Yes sir, that's in the amended complaint as alleged.

That investigations for this Commission when instructed and this came from one of their former undercover agent when instructed to shoot named individuals who killed so long as it was colorably shown that it was done as self defense and this indeed and this is in connection with the fact that this statute gives immunity to every employee and every official and every agent of this Commission for anything to do.

Justice Potter Stewart: For murder?

Mr. J. Minos Simon: It says immunity for anything to do while the performance of any duty assigned to them and the statute expressly grants it to them.

Justice Byron R. White: How do you get away from the Hannah versus Larche?

Mr. J. Minos Simon: Because Hannah was not an accusatory function, if Your Honor please.

Hannah did not involve an accusatory function.

It was not and did not have an accusatory function.

Hannah for example wherever there was a defamatory content or an incriminating content, Hannah went into executive session, it had to.

Well, as this Court said, it shall go into executive session and this information was released only with the consent of the Commission.

The contrary is true in this case.

This Commission must conduct public hearing.

If it goes into executive session, it cannot utilize what evidence it has developed in that session and if it seeks to do so, it must represent all anew, all this evidence in a public hearing.

There was some claim.

Well, in the preamble it shows that there was a shutdown of the industrial complex in the City of Baton Rouge some months preceding in the enactment of this legislation and thus there was an emergency created and this Commission was created.

That's (Inaudible).

Thank you.

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: You asked me what they had --

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: Background.

Yes it is.

Yes sir.

I'll give you the background, if Your Honor please.

Mr. Partin who heads this union was the star witness who testified on behalf of the Government against Mr. Hoffa, and Mr. Hoffa's prosecution and his background there -- the continuing background of effort being made to get Mr. Partin to recant his testimony so as to be used as a basis to grant to Mr. Hoffa a new trial.

There have been statements of bribery by state officials and otherwise or attempted bribery of Mr. Partin.

There are criminal charges pending the state courts involved in the very same thing.

There's adult with charge who was attempting to bribe Mr. Partin and other individuals and this is part -- in other words, the effort to bribe Mr. Partin apparently from what is available, the information is available.

It includes state officials and its part of an effort to coerce Mr. Partin into recanting his testimony.

It sounds somewhat strange but I only advocate the rights of my client and that's what the evidence demonstrates.

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: That's -- that's the conviction of my client Your Honor and there seems to be apparently evidence available to support that charge.

Justice Potter Stewart: Your client is a member of the union of which Mr. Partin is the --

Mr. J. Minos Simon: The head.

Justice Potter Stewart: -- head.

Mr. J. Minos Simon: Yes, sir.

Justice Potter Stewart: And he thinks that Mr. Partin is being damaged.

Mr. J. Minos Simon: Well, I think the whole union is being damaged.

Being characterized, the Governor has called them gangsters and hoodlums.

The Governor further asked them to point this out.

Furthermore, the Governor stated that anybody who would give testimony in support of the conspiracy charge involved in this particular case in the Martone case, will be charge with perjury.

With Mr. White, the undercover agent signed his affidavit, within 30 days, he signed the affidavit that was filed in the federal forum, the Federal District Court.

Within 30 days, a member of the Commission filed perjury charges against Mr. White's statement based upon his allegation that these people were involved and were involved in the conspiracy to commit murder.

Furthermore, we are involved in the conspiracy of bribing people and fabricating evidence against these people.

Thank you, Your Honor.

Argument of Ashton L. Stewart

Mr. Ashton L. Stewart: Mr. Chief Justice --

Chief Justice Earl Warren: Mr. Stewart.

Mr. Ashton L. Stewart: Yes, sir.

Mr. Chief Justice and may it please the Court.

The preamble of this statute provided that there have been a shutdown in the construction work in the vicinity of Baton Rouge and that because of the great need for statewide investigatory powers which they did not have at that time and to aid and assist the district attorneys and the grand juries and then law enforcement officers enacted this legislation in order to create this investigatory commission.

Faced off it specifically provided that the Commission should not make any adjudication as to the guilt and innocence or as to (Inaudible) property rights just as what's held in Hannah versus Larche.

The --

Chief Justice Earl Warren: My interpretation to (Inaudible)

Mr. Ashton L. Stewart: A legal adjudication.

They can make findings, yes sir.

Chief Justice Earl Warren: But they can't (Inaudible).

Mr. Ashton L. Stewart: No sir.

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: They have no authority to accuse anyone just as in the Civil Rights Commission.

That commission have authority to make findings and so that this Commission have the authority to make findings.

In addition to that, they went further and spelled out the words that the counsel placed on.

It says, it may include in its findings general conclusions or particular inclusions as to particular individuals.

I may not have the exact words but that was what it could include in its findings but the -- the words -- yes sir, the statute does say so but of course all public reports such as this report on the Civil Rights Commission would have been filed and then publicized by being made public.

This report of this Commission was to be filed with the legislature and the governor and of course would have made it publicized also.

Unknown Speaker: (Inaudible)

Mr. Ashton L. Stewart: The only object I could understand from their statute, if it please the Court, is that they especially wanted everything into public's eye with reference to this.

It was embroiled the community in such a tremendous matter that they wanted everything out in open in public.

That's the reason they required all the hearings to be heard public and then --

Justice Abe Fortas: Well, as a matter of fact all civil matters are in the labor management field are expressly excluded from the jurisdiction of this Commission, was it not?

Mr. Ashton L. Stewart: Yes.

Justice Abe Fortas: And the Commission's jurisdiction is limited only to violations of criminal law in the field of labor management relations, isn't that right?

Mr. Ashton L. Stewart: That's correct sir.

Justice Abe Fortas: With the expressed exclusion of civil matters.

Mr. Ashton L. Stewart: That's exactly correct sir.

Justice Abe Fortas: So that it's suppose to have public hearings and make a public report identifying individuals and making findings that they have violated the criminal laws of Louisiana or the United States, is that right?

Mr. Ashton L. Stewart: They were supposed to make findings and that provided they made include in those findings particular individuals retake --

Justice Abe Fortas: Only on violations of the criminal law and if they come across any labor management problems which is not a violation of criminal law they are supposed to exclude it from the scope of their operations.

Mr. Ashton L. Stewart: Yes, that's exactly sir.

Chief Justice Earl Warren: And Civil Rights Commission.

Mr. Ashton L. Stewart: Yes sir.

Well, I don't know about the -- I wouldn't want to answer that right off but the Civil Rights Commission statute does provide that they make findings and I'm reading from 1975.

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: Yes, the Civil Rights Commission limited to voting denials and in that respect they are similar, yes sir.

Its investigation in that -- in Hannah versus Larche, there was the same contention made that they would publicize and hold these people up to scorn because of having committed some crime and repressions to the voting thing and that's the same identical argument we made here.

Justice Abe Fortas: No, no but you're not saying are you that Civil Rights Commission involved in Hannah against Larche was suppose to confine itself to violations of the criminal law.

Mr. Ashton L. Stewart: No sir, I didn't intend to say sir.

Justice Abe Fortas: I don't think so.

Mr. Ashton L. Stewart: No sir and if I did I'm sorry.

Unknown Speaker: (Inaudible)

Mr. Ashton L. Stewart: Well, it could be that judge but I --

Unknown Speaker: (Inaudible)

Mr. Ashton L. Stewart: Well, I would say as exactly what the Civil Rights Commission was.

It had a right to have hearings --

Unknown Speaker: (Inaudible) for that commission.

Mr. Ashton L. Stewart: Well, that's exactly right.

It has a right to hold hearings, make investigations report to the legislature and to the governor and it may include in its report particularly individuals, yes sir.

Unknown Speaker: (Inaudible)

Mr. Ashton L. Stewart: Yes sir.

Under the statute, they're entitled to just as in the Civil Rights Commission to be accompanied by an attorney but he is not given the right to cross examine the other witnesses without the Commission's --

Unknown Speaker: (Inaudible)

Mr. Ashton L. Stewart: No sir, it is not.

Justice Thurgood Marshall: Well, Mr. Stewart, I understand it, they hold these hearings and they air everything in public and then they find that they have violated a or several laws, criminal laws of the State of Louisiana, is that right?

Mr. Ashton L. Stewart: Yes, sir.

Justice Thurgood Marshall: And then they referred to a trial court to prosecute him, right?

Mr. Ashton L. Stewart: They -- those in authority or prosecution, yes that they can give the information to him.

Justice Thurgood Marshall: Well, what's the purpose of saying to the Court when you already found him guilty?

Mr. Ashton L. Stewart: Well, this Commission cannot do anything to deprive him of any of his rights at all.

Justice Thurgood Marshall: Except to find him guilty without a trial?

Mr. Ashton L. Stewart: Same way with the grand jury, yes, sir.

They can find him -- they could charge him or say that that is their opinion and that would be far greater than this proceeding.

Justice Thurgood Marshall: Am I correct that if Louisiana grand jury is not public.

Mr. Ashton L. Stewart: You're certainly correct, yes sir.

Justice Thurgood Marshall: Well, this is public?

Mr. Ashton L. Stewart: This is a public hearing, yes sir.

Justice Thurgood Marshall: And findings?

Mr. Ashton L. Stewart: Finding, yes sir.

Justice Thurgood Marshall: And the findings are either that you have or you have not violated the criminal law.

Mr. Ashton L. Stewart: It could be, yes sir.

Justice Thurgood Marshall: By a state official defined you.

Mr. Ashton L. Stewart: Yes sir, on commission.

Justice Thurgood Marshall: Aren't you guilty, isn't that what they did?

Mr. Ashton L. Stewart: Well, I wouldn't say so, no more than any other commission, no more than any other legislative commission or committee, they can make observations.

The statute says to make findings and that's whatever the legislative commission --

Justice Thurgood Marshall: And what is your idea be it defined then, we find (Inaudible) what?

Guilty of violating such and such a statute, what would your word be?

Mr. Ashton L. Stewart: Well, I would think that would be sufficient judgment.

Justice Thurgood Marshall: To say that he's guilty.

Mr. Ashton L. Stewart: They could find -- that would be a finding.

A finding would encompass such --

Justice Thurgood Marshall: And then you give him all the due process after that.

Mr. Ashton L. Stewart: Well, if we have a situation as we have here with these conditions going on and with the jurisdiction of the district attorneys and the grand juries limited to parish limits, they needed something because this industrial complex encompass far more than one or two parishes.

They needed some help.

What were they to do?

They certainly publicize by making everything public.

The public of course could judge very well if anyone was doing something unfair then I think that was one of the statutory features of this statute was public and not private.

Unknown Speaker: (Inaudible)

Mr. Ashton L. Stewart: He's appointed by the Governor, sir.

It has to be free from labor, free from management, and free from the public.

It did include the dean of the two university law schools who were chairman; the dean of Louisiana State University was vice chairman.

Yes sir, he accepted and served both have since resigned or not with it anymore.

Justice Thurgood Marshall: Now they are not.

Mr. Ashton L. Stewart: Both of them, yes sir.

Unknown Speaker: (Inaudible)

Mr. Ashton L. Stewart: Well, yes sir.

Both of them actually accepted and served.

Dean Morgan who was chairman and Dean Abe was vice-chairman.

Until recently, there have been no hearings since those two have stepped down.

Justice Abe Fortas: Did the Commission get at any rules and regulations?

Mr. Ashton L. Stewart: They were more or less spelled out in the statute that they had to do exactly what they did in the Civil Rights Commission.

Justice Abe Fortas: I see they have a power to publish rules and regulations, did they do that?

Mr. Ashton L. Stewart: Not that I know of any difference from those in the statute.

Justice Abe Fortas: Has the Commission assigned any of its personnel to the state police under 880.6 (c)?

Mr. Ashton L. Stewart: I'm sure they have sir, that's not in the record.

Justice Abe Fortas: And I notice that that provision provides that upon request of the governor, the Commission may assign all the private investigatory forces to the state police to assist them in investigating any violations or probable violations of law and in apprehending all persons engaged in violation of law, what does that mean?

Mr. Ashton L. Stewart: That's the general duty and obligations of the state police.

Anytime they needed help, these could be assigned to the state police at that time the police --

Justice Abe Fortas: The Commission can have its personnel operate as part of the state police, make arrest and so on.

Mr. Ashton L. Stewart: Under -- yes, under those circumstances.

Justice Abe Fortas: And you say it has done that.

Mr. Ashton L. Stewart: I'm sure it has, yes sir.

This Commission --

Chief Justice Earl Warren: Civil Rights Commission has such (Inaudible).

Mr. Ashton L. Stewart: No sir, no sir.

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: Well, with reference to the procedures here, they're identical with the Civil Rights Commission.

The court below said the procedures were drafted with the Civil Rights Commission as a model.

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: No, sir.

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: No responsibility.

In this one, they do have the authority to file with -- sir?

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: To file with --

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: Sir?

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: Not that I know of sir.

Not the Commission, no sir.

No sir, not that I know of.

The Commission hasn't been overly successful.

The -- I would like to answer some other questions that have been raised here, with reference --

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: No sir I do not think so.

My understanding Dean Morgan was already retired from another position and he wanted some peace.

He just served temporarily in my understanding at the behest of the government until this investigation of Baton Rouge business was over with and that with and after that he had stepped down and the same way with Dean Morgan.

And it was quite different from the three labor members, they resigned for other purposes because of civil service argument I believe.

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: Nine.

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: Well, I know that Dean Morgan and Dean Abe have resigned and three labor members they resigned and I believe so, subsequently here recently, the governor haven't accepted their resignation so they came back and they have now been holding some executive meetings.

I do not know.

I do not represent the Labor Management Commission.

I'm just handling this litigation and I'm not familiar with what they are doing in such as it.

We would like to say that there's nothing in the record to show that any of these charges against Mr. Jenkins were filed by this Commission that is the assault charges.

There's nothing in the record to show his -- the allegation that was read was that these charges in conspi -- were filed in conspiracy with the Commission.

The affidavit of Mr. George with reference to the murder count is quite different I think than saying that he had made that allegation.

He says that he was advised that these various men could be shot and killed by members of the labor -- by members of the Commission of Inquiry at the slightest provocation and the amount of it would make it appear to be an act of self defense and we would like to add here that all of the allegations with reference to the administration of the statute and we've argued it at length in our brief have no causal connection with the administration of the statute.

They charge for example that Mr. Jenkins himself was filed on by the district attorney that has no causal connection with the Commission because they can't do that and it's not that they did it.

He does not allege that.

The causal connection is lacking to where they say that the Commission is threatened to kill these six people.

That has no causal connection with the administration of the statute.

There are many other things that they have alleged here that they have passed her that have no causal connection with the administration of the statute and we would like to touch on the lack of jurisdiction here and mootness and one of the basis of the lower court's decision.

Here, this plaintiff has not alleged that he was about to be called or that he has been called or that he was being investigated or it was about to be investigated.

He has said that he was suing as a member of a class and he hasn't even alleged so far as we can read his petition that any members of the labor union that he belonged to were subpoenaed or were about to be subpoenaed or were being investigated.

Justice Byron R. White: He doesn't allege that he was an object of the investigation.

Mr. Ashton L. Stewart: No sir, he does not.

Justice Byron R. White: Or that he was ever -- I thought I understood you to say that he has been charged -- that the state charges have been filed against the him as a result of the Commission's word.

Mr. Ashton L. Stewart: That's not in the record.

Justice Byron R. White: It isn't alleged in the complaint?

Mr. Ashton L. Stewart: No sir.

The --

Justice Byron R. White: There's nothing in the record about it?

Mr. Ashton L. Stewart: Well, I won't say that.

He has said that the Labor Management Commission in conspiracy with the district attorney filed these charges against him.

Now, if you can eek out to that that was the Commission doing it as something else but that's the only allegation.

Justice Byron R. White: Was there any -- any allegations in the record or anything to reveal whether or not any witnesses were called who testified against him?

Mr. Ashton L. Stewart: No sir.

There's nothing to that effect here.

Justice Byron R. White: No indication in the record that he was the object of any commission hearing.

Mr. Ashton L. Stewart: Nothing in the record.

Justice Byron R. White: Or the object of any findings by the Commission.

Mr. Ashton L. Stewart: Nothing in the record.

He is a stranger to these proceedings and if the Court were to grant the injunction it would not help him in accordance with the record.

We repeat again that this Commission --

Unknown Speaker: (Inaudible)

Mr. Ashton L. Stewart: Only the broad term conspiracy sir but when he gives any factual connection, he talks about this murder business and these charges filed by the district attorney and other charges such as someone being arrested by -- the search warrant by an arrest warrant and searched by a search warrant in a flamboyant manner such as that but there is nothing here to tie in the procedures that he has and he calls in connection with the administration of the statute.

Unknown Speaker: (Inaudible)

Mr. Ashton L. Stewart: Well, only that broad statement but all of the facts that he alleged none of the facts have any causal connection.

Unknown Speaker: (Inaudible)

Mr. Ashton L. Stewart: Well, he does make the statement as you have quoted but then in an explanation of it, he goes on and sets out all the facts and we take it that those are the --

Unknown Speaker: (Inaudible)

Mr. Ashton L. Stewart: I wouldn't say he purports it set out all the facts, no sir.

I'm incorrect in that.

He sets out the facts that are in the petition, all the facts that are in this petition as amended.

Justice Thurgood Marshall: Is it true Mr. Stewart that he is a member of the union which caused the work stoppage which brought about this statute?

Mr. Ashton L. Stewart: I would think that my recollection, I don't -- that's not in the record but the recollect -- my recollection is that the -- one of the big problems was the jurisdictional problem between electricians and the Teamsters and he is one of the members of one of those unions.

Yes.

Justice Thurgood Marshall: He is a member of the teamsters.

Mr. Ashton L. Stewart: Yes, the Teamsters.

Justice Thurgood Marshall: There is some connection.

Mr. Ashton L. Stewart: Yes, on that basis.

Justice Thurgood Marshall: They brought about the statute, didn't they?

Mr. Ashton L. Stewart: Well, of course now that's the only one side.

The accusations were quite broad and long that there were many industrial people who brought this unto the employer.

Justice Thurgood Marshall: I'm not using your statute.

It says that we're getting at the statute that this is the reason for it.

Mr. Ashton L. Stewart: Well, no sir.

It only says that there are industrial shutdown and affecting thousands of people in this community and in the construction of industrials plants.

Yes sir, that's what it says.

Justice Thurgood Marshall: Well, can you have construction of industrial plants without trucks?

Mr. Ashton L. Stewart: No sir.

Well, I'm not saying that -- I've not said that -- not intended to say that the labor union of the Teamsters were not included in the investigations and not included for the real basis for having enacted the statute but there were many other facets to it and the statute did not attempt to spell out which particular one or the numerous ones that they were relying on.

It just says, we have this bad situation.

We need to get statewide power of investigation and we need to have some assistance to the grand juries and to the district attorneys.

Justice Abe Fortas: May I ask you sir, has this Commission filed any official reports of its actions?

Is there a record in anywhere that would be available to us of what the Commission has done?

Mr. Ashton L. Stewart: There was a report filed, if it please the Court, but it did not go into the any particular person.

It did say in generalities and this is most -- most of this is anticlimaxal because the whole problem has been tied in courts such as this case and in time you get ready to subpoena a witness, you have contempt problem and have had the hands more or less tied.

It has not functioned as it was anticipated as it was anticipated that it would function and probably will not unless this Court finally have proof.

There have been no findings that any particular person was guilty of anything.

There have been no findings as to such as that.

Justice Abe Fortas: Well, has -- I beg your pardon.

Has there been an annual report or some other official report that would be available to us or official reports of action taken from time to time regardless of what they say?

Mr. Ashton L. Stewart: Yes sir.

There was one on my recollection that not too far long back and that could be available and we'd be happy to make it available if the Court desires.

Unknown Speaker: (Inaudible)

Mr. Ashton L. Stewart: They held some -- originally, they have not held any since the time of this case.

In my recollection, they have not held a public hearing.

I could be wrong but I think I'm not that when these injunctions started issuing, they have not held another public hearing since then.

Well, we have one in the Martone case.

It came up through the state courts.

Well, thank you.

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: Well, the Commission could not have --

Chief Justice Earl Warren: Perhpas we charge that they have (Inaudible).

Mr. Ashton L. Stewart: No sir.

My understanding, the Commission has no authority whatsoever to file any information such as out against a man.

We have cited in our brief, and only the district attorney can do that or the grand jury.

Chief Justice Earl Warren: Now District Attorney (Inaudible) --

Mr. Ashton L. Stewart: In conspiracy, yes.

In conspiracy but --

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: But as what he said, that we -- our answer is that they have no authority to do that.

They have no authority to do that.

They have no control over the district attorney.

They have nothing more than the right of any citizen to go down and complain against somebody.

Now --

Chief Justice Earl Warren: Well, they could conspire.

Mr. Ashton L. Stewart: Oh yes, that they could conspire to such as that but only the district attorney can make that decision, only the grand jury.

Are there are any other questions?

Thank you, sir.

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