Cases by Issue - Remand to Determine Basis of State Court Decision

Bush v. Palm Beach County Canvassing Board - Oral Argument

Fri, 09 Jan 2009 14:50:32 +0000

Case:

Bush v. Palm Beach County Canvassing Board

Media File:

00-836_20001201-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Theodore B. Olson

Chief Justice Rehnquist: We'll hear argument this morning in number 00-836, George W. Bush vs. The Palm Beach County Canvassing Board.

Mr. Olson.

Mr. Olson: And may it please the Court: Two weeks after the November 7 presidential election, the Florida Supreme Court overturned and materially rewrote portions of the carefully formulated set of laws enacted by Florida's legislature to govern the conduct of that election and the determination of controversies with respect to who prevailed on November 7th

These laws have been formulated by the Florida legislature pursuant to an express delegation of authority, to wit, by the United States Constitution.

The election code that the Florida legislature developed conformed to Title 3, Section 5 of the United States Code.

That provision invites states to devise rules in advance of an election, to govern the counting of votes and the settling of election controversy.

Justice O'Connor: Well, Mr. Olson, isn't Section 5 sort of a safe harbor provision for states, and do you think that it gives some independent right of a candidate to overturn a Florida decision based on that section?

Mr. Olson: We do, Justice O'Connor.

It is a safe harbor, but it's more than that.

And Section 5 of Title 3 needs to be construed in connection with the history that brought it forth...

Justice O'Connor: Yes.

But I would have thought it was a section designed in the case of, some election contest ends up before the Congress, a factor that the Congress can look at in resolving such a dispute.

I just don't quite understand how it would be independently enforceable.

Mr. Olson: That's why I've mentioned the context in which that section was adopted.

In light of the extreme controversy that was faced by this country as a result of the 1876 election, and as this Court knows, that election was very close and led to controversy, contest, discord, Congress was very much concerned about the possibility of that happening again, and one of the reasons...

Justice Kennedy: Yeah, but what they did was, and it's typical of grant-in-aid programs, they said if you run a clean shop down there, we'll give you a bonus, and if you don't, well, you take your chances with everybody else.

Mr. Olson: Justice Kennedy, I submit that it is much like a compact that Congress is offering in the form of Section 5, yes.

If you do these things, certain things will happen.

But among these things, what Congress wanted to accomplish with Section 5 was not only to provide the benefit to the states, but to provide the benefit to the United States of the states accepting that implicit proposal.

Justice Kennedy: But what is there in the opinion of the Supreme Court of Florida that indicates that it relied on this Federal statute in the reasoning for its decision and in its judgment?

Mr. Olson: Well, I think the fact is that it did not.

What it did was it disregarded the compact.

When the state adopted a code of ethics, or a code of election procedures to govern the election and the determination of disputes pursuant to the election, it brought itself into that safe harbor and guaranteed to the voters and the candidates in that state that the controversy and turmoil that infected this country after the 1876...

Justice Kennedy: Well, we are looking for a Federal issue, and I thought that you might have argued that the Secretary of State was instructed by the Supreme Court not to jeopardize the state's chances and then cited 3 U.S.C. Sections 1 through 10.

And so if the, if the state supreme court relied on a Federal issue or a Federal background principle and got it wrong, then you can be here.

Mr. Olson: Well, I certainly agree that it mentioned those provisions.

I'm simply saying that it blew past the important provisions of Section 5 and the benefits that Section 5 gives to the states to the voters in that state and to the people running for office in that state.

That is to say that if the rules are complied with, if disputes are resolved according to the rules that are set forth, then not only will the electors chosen by the voters in that state be given conclusive effect at the time they are counted by Congress but we will not have the controversy, dispute and chaos that's been taking place in Florida.

Justice Scalia: Mr. Olson, suppose a less, a less controversial Federal benefit scheme, let's say the scheme that says states can get highway funds if, if they hold their highway speeds to a certain level, all right?

And suppose you have a state supreme court that in your view unreasonably interprets a state statute as not holding highway speed to the level required in order to get the benefit of that safe harbor.

Would you think that that raises a Federal question and that you could appeal the state court decision here because it deprived the state of the benefit of the highway funds?

Mr. Olson: No, I don't think so.

Justice Scalia: Why is this any different?

Mr. Olson: This is a great deal different because this is... first of all, Article II of the Constitution which vests authority to establish the rules exclusively in the legislatures of the state, tie in with Section 5.

Secondly, as this Court has stated...

Justice Scalia: Well, let's just talk about Section 5.

I mean, the constitutional question's another one.

Why is Section 5 in that regard any different from the highway funding?

Mr. Olson: I think it... I think it can't be divorced from Article II of the Constitution because it's a part of a plan for the vesting in the legislatures of a state, and Section 5 implements Article II in the sense that it provides a benefit not just to the state but to the voters.

Justice Kennedy: But just talk about the statutory issue.

I assume that if we worked long enough with Justice Scalia's hypothetical, we could find a case where a court adjudicated with reference to the Federal principle and got the Federal principle wrong.

Did... Indiana vs. Brand and that kind of thing.

Did that happen here?

Mr. Olson: Well, I think that the state did not pay, the state supreme court did not pay much attention to the Federal statute.

It was obviously aware of it.

It did get the Federal principle...

Justice Kennedy: Well, then there is no Federal constitutional issue here.

Mr. Olson: Well, there is a Federal...

Justice Kennedy: Pardon me, statutory issue.

Mr. Olson: Well, we believe that there is, Justice Kennedy, because although the state recognized it, it blew right past it.

The state legislature adopted the code that the Section 5 of Article 3 of Title 3 invited it to do.

The state supreme court, which had no right under the Constitution, but I can't divorce the constitutional provision from Section 5, then overturned the plan that the state enacted through its legislature to make sure that what happened down in Florida was not going to happen.

And so what the state supreme court did, knowing full well that these provisions existed, overturned the carefully enacted plan by Florida.

Chief Justice Rehnquist: Mr. Olson, do you think that Congress when it passed 3 U.S. Code, intended that there would be any judicial involvement?

I mean, it seems to me it can just as easily be read as a direction to Congress, saying what we are going to do when these electoral votes are presented to us for counting.

Mr. Olson: I think that it was intend... directed to Congress, but it seems to me that in the context in which it was adopted and the promise that it afforded, that the conclusive effect would be given to the state selection of electors, that is a somewhat empty remedy and it doesn't accomplish Congress' objectives if it cannot be enforced when an agency of the state government steps in as the Florida Supreme Court did here and overturn the plan by which the Florida legislature carefully set forth a program so that disputes could be resolved, and we wouldn't have the controversy, conflict and chaos that we submit exists today in Florida.

Justice Stevens: Mr. Olson, your... your submission is based on the premise that the Florida court overturned something that the statute did not.

Is it not arguable, at least, that all they did was fill gaps that had not been addressed before?

Mr. Olson: Justice Stevens, I don't think that in this case that's even remotely arguable.

What the state supreme court did is take a set of timetables, a set of provisions that...

Justice Stevens: Yes.

And the first one was the mandatory... is it your view still that the shall date controls in all respects?

Mr. Olson: No.

Not necessarily.

But the 102... there is the two provisions, Section 102.111 and 102.112.

111 contains the shall date, 102 contains the may date.

Justice Scalia: Correct.

Mr. Olson: Both of those statutes, both of those provisions say that the returns must be, or shall be filed by a certain deadline.

The shall and the may provisions simply relate to the possible remedy.

We submit that under either interpretation the Secretary of State of Florida either must or shall ignore those returns, or may set those aside in her discretion.

Justice Stevens: Does that mean if there were an act of God that prevented the returns from being filed that she would have discretion either to accept or reject the returns?

Mr. Olson: Yes, I believe...

Justice Stevens: She would have the discretion?

Mr. Olson: Yes.

Justice Stevens: Would she be compelled in that event to accept the returns?

Mr. Olson: I don't think so.

She took the position...

Justice Stevens: She has the total discretion either to accept or reject?

Mr. Olson: That's...

Justice Stevens: Is there any circumstance in which she would be compelled to accept a late return?

Mr. Olson: I don't know of any.

I haven't thought of any, Justice Stevens.

Justice Stevens: Well, you are arguing in effect that it's a mandatory deadline.

Justice Scalia: I wonder if you really mean it's mandatory.

Mr. Olson: Well, the problem is that it's... what we are saying is that either it's mandatory, in which case she could not accept them.

Justice Stevens: But you don't know whether it's mandatory or not?

Mr. Olson: Well, the Florida Supreme Court and what the circuit court did in that case, it said that it wasn't... and we'll accept this for purposes of this argument that it wasn't...

Justice Stevens: Yes, but one of the things that's of interest to me is the extent to which you say there was a change in the law.

It seems to me that in order to answer that question you have to know what your view of the law was before this all happened.

Mr. Olson: I think that we can answer that this way, is that whether it was shall ignore or may ignore.

It was not must accept.

Justice Stevens: Under any circumstance it was not must?

Mr. Olson: No, under no circumstances was it must accept.

Now...

Justice Scalia: Even in an act of God or fraud?

Mr. Olson: I don't believe so, Justice Stevens.

Chief Justice Rehnquist: Okay.

Justice Breyer: Mr....

Isn't the law in Florida like as in most states, and in the Federal government, that when an official has discretion, may accept or may not accept, that has to be exercised within the limits of reason?

Mr. Olson: Yes.

Justice Breyer: Well, then, isn't it possible that when the court says she must accept under certain circumstances, what they mean is outside those circumstances, given the circumstances here it would be unreasonable to refuse?

Mr. Olson: Well, what the court did was so constrain those circumstances, virtually to make them nonexistent.

Justice Breyer: All right.

So then what you're arguing about is a determination by the state court of Florida as to what the circumstances are under state law where the action of a state official would or would not be reasonable.

Mr. Olson: I think that... yes, but I think that it has to be looked at in the context in which that was done when the state supreme court so constrained and says in its opinion shall accept these late returns until 5 p.m. on November 26th, and in the context there was no discretion left for the Secretary of State at all.

Justice Ginsburg: Mr. Olson, may I ask you, because you've been skipping over what I thought was a key piece of the Florida legislation.

The Florida Supreme Court said, there's the deadline, and that conflicts with another provision of this law, the provision that says there shall be under certain circumstances recounts, and then there's a rather detailed description of the process that's necessary, the time line for when you can ask the recount is on the 6th day.

Mr. Olson: Up to.

Justice Ginsburg: Yeah, up to.

And it would be impossible in a populous county to in one day do what the statute instructs must be done when there's a recount.

The Florida Supreme Court said, it's right in its opinion, there's two conflicts, and the first one they mention straight out on page 21A of your appendix, is that there has to be a reconciliation between this, yes, there can be recounts and, yes, there's a deadline.

So they are trying to reconcile two provisions.

Mr. Olson: The first part of the recount provision to which you're referring, Justice Ginsburg, says may conduct a recount.

Under certain circumstances after the sampling part of that process is taken, if it's taken in the county canvassing board's discretion, then under certain circumstances it's supposed to go forward with a more fulsome process, but the legislature being fully aware of the recount provisions and the importance of... this ties in with the protest period for the election, which overlaps the recount provisions, and the contest provision for the election, and the fact that all of this has to be done in the context of a presidential election.

Under any other kind of election, these things wouldn't be nearly as important, but we have very important timetables, and as this Court has said a presidential election is so important to the rest of the nation, and there is such high Federal interest in accomplishing these things in the right way, what the Florida legislature did is balance the protest period, the recount period with the contest period, and state that there shall be certain deadlines before which certain things need to be done and after which, so what those two statutes say is that there may be a recount, but that there shall be compliance with the time deadline.

It also says that...

Justice Ginsburg: But that's something that one can certainly argue.

My problem is, one could also argue what the Florida Supreme Court said, and I do not know of any case where we have impugned a state supreme court the way you are doing in this case.

I mean, in case after case we have said we owe the highest respect to what the state says, state supreme court says, is the state's law.

Mr. Olson: This is a very unusual situation, Justice Ginsburg, because it is in the context of a presidential election, and it is in the context of Federal rights.

This Court has, in the areas in which we've described in our brief, undertaken to review the meaning and the effect that the state supreme court or state court decision under certain circumstances.

We submit this is one.

What the Florida Supreme...

Justice Ginsburg: But I said, and even in the very cases that you cite, because I checked them, that we owe the highest respect to the state court when it says what the state law is.

Mr. Olson: Yes, but then the Court has also said, then we go on to see the extent to which what the state court did, as we cited in the Lindsey case, for example, in the ex post facto context, we go on to see what the import of that is in connection with the Federal right.

I would emphasize that what the Florida Supreme Court did is basically essentially say, we're rewriting the statute, we're changing it.

Justice Kennedy: Does the Secretary have any flexibility to accommodate the statute to the exigencies of the presidential election?

The Secretary of State.

Mr. Olson: The Secretary of State did.

It doesn't... she doesn't much anymore because what has happened... and I would like to finish that one point, that the Florida Supreme Court said we are not going to be bound by technical statutory requirements or what the supreme court called hyper-technical statutory requirements.

Instead, we are going to resort to the will of the people, the will of the electorate, the will of the voters, so to speak, and we are going to... because we can't rewrite the statute, but we are going to partially rewrite the statute, we are going to resort to our equitable powers.

So what... and among the things that the court did, and there are a range of them, as I have indicated, they took away the discretion of the Secretary and instructed her to accept these manual recount returns.

Justice Stevens: Mr. Olson, on the equitable powers, they were doing that in setting a new deadline, and I don't think you would argue the case would have been more acceptable if there had been no deadline?

Mr. Olson: No, it wouldn't have been, but...

Justice Stevens: And on the fight between may and shall, they relied on four traditional canons of statutory construction and not equity at all.

Mr. Olson: They recited four canons of statutory construction, Justice Stevens, but when they said they use those construction... canons of statutory construction to say that the words may and shall mean shall not, that is not a reasonable exercise of statutory construction.

I think what the... it's relatively obvious that what the supreme court did is exactly what Article... Section 5 of Article III intends not to happen.

Change the rules.

Justice Scalia: I don't read their opinion that way, Mr. Olson.

It seems to me that the portion of their opinion dealing with statutory construction ends with a conclusion that the Secretary has discretion.

The portion of the opinion employing the canons of construction does not place any limits upon the Secretary's discretion.

Mr. Olson: Well, yes, I agree with that up to a point, but then it says that she must accept these returns that are after the deadline.

Justice Scalia: That was not on the basis of any canons of statutory construction.

That was on the basis of the state's constitution.

Mr. Olson: That's right, but... so there was both going on, and what the court was bound and determined to do was to get to a consequence that the court determined was consistent with the will of the people, irrespective of what the statute...

Justice Ginsburg: Mr. Olson, would you agree that when we read a state court decision, we should read it in the light most favorable to the integrity of the state supreme court, that if there are two possible readings, one that would impute to that court in judicial behavior, lack of integrity, indeed dishonesty, and the other one that would read the opinion to say we think this court is attempting to construe the state law... it may have been wrong, we might have interpreted it differently, but we are not the arbiters, they are.

Mr. Olson: I would like to answer that in two ways.

In the first place, I don't mean to suggest, and I hope my words didn't, that there was a lack of integrity or any dishonesty by the Florida Supreme Court.

What we're saying, that it was acting far outside the scope of its authority in connection with an exercise of power that is vested by the Constitution of the United States...

Justice Ginsburg: But if it tells us... if it tells us, we see these two provisions in conflict, they need to be reconciled.

Mr. Olson: But... under almost any other circumstances, yes, Justice Ginsburg, but in this context, in this context, we are talking about a Federal right, a Federal constitutional right, and the rights of individual citizens under the Constitution and so therefore, this Court has a grave responsibility to look...

Justice O'Connor: Mr. Olson, I'd like to get focused a little more on this same area.

If it were purely a matter of state law, I suppose we normally would leave it alone where the state supreme court found it, and so you probably have to persuade us there is some issue of Federal law here.

Otherwise, why are we acting?

Mr. Olson: Yes.

Justice O'Connor: And are you relying in that regard on Title 2?

I mean, would you like to... Article II?

Would you like to characterize the Federal issue that you think governs this?

Mr. Olson: Well, we are very definitely relying on Article II of the Constitution.

The framers of the Constitution debated long and hard.

It was one of the longest debates that took place during the formation of the Constitution.

Where should this power be lodged, in the Federal legislature, in the state legislature, at the ballot booth or what.

The one thing that was discussed and rejected by virtually everyone is that the power to select the manner in which electors would be appointed would be in the state judiciary, and we quote... in the state judiciary.

That was rejected.

The notion that it would be vested in the state judiciary was something that was rejected, and what the framers decided to do is to vest it in the state legislature and vested that authority under Article II, not just in the state, but the legislature.

Justice Kennedy: And the state legislature could vest it in the judiciary if it wanted, as I read the McPherson case, and here they have done something less.

The state judiciary said, we are going to invoke the ordinary election procedures, which you know, warts and all, it involves some interpretation by the courts and contest proceedings, et cetera.

Mr. Olson: Well, it is... yes, it said that, Justice Kennedy.

But what it did was supplant a set of rules elect... enacted before the election to govern the election, for a set of rules made up after the election.

Justice Stevens: All right.

Justice Souter: Mr. Olson, let's assume that it did that, for the sake of argument.

I want to go back to the issue that the Chief Justice raised a little while ago, and I'd like you to comment on this line of reasoning.

You've got Section 5.

Congress in the statute seems to have gone to great lengths to provide what to do in the situation that you are describing, accepting your view of the case.

Section 5, it says if you do certain things within certain times, the conclusion that you draw is going to be conclusive upon the Congress.

In Section 15, it sets out in fact an elaborate set of contingencies about what the Congress is supposed to do and can do if there is a dispute as to whether a given set of procedures in the state have conformed to Section 5.

Section 15 refers to regularity.

It refers to legality and illegality.

It looks to me as though at least at this stage of the proceedings, Congress has said if there is a question about whether this if-then provision in Section 5, construing Article II, has been satisfied, then this is the decisional tree for the Congress to follow in deciding what to do about it and in resolving challenges.

It looks to me as though at this stage of the game, the statute has committed the determination of the issues that you raise and the consequences to follow from them to the Congress.

Why should the Court, why should the Federal judiciary be interfering in what seems to be a very carefully thought out scheme for determining what happens if you are right?

Mr. Olson: Because I submit that that writes Section 5 essentially out of existence if an agency of state government, if a state legislature...

Justice Souter: No.

It doesn't write it out of existence.

It provides in Section 15 what happens if the state agency does what you say it did.

Mr. Olson: If the state agency, if the state legislature empowered by Article II of the Constitution, does what it is invited to do by Section 5, and then another agency of state government, in this case the state supreme court, comes along and upsets that scheme, yes, you have ultimate resort to the resolution of the dispute under Sections 15 of Title 3, but that's precisely...

Justice Souter: Well, you say you have ultimate resort.

But that begs the question, that seems to be precisely the resort that Congress has provided.

Mr. Olson: Well, I'm not making myself clear, I think, is that the importance of Section 5 was to invite the state to do things that would avoid the chaos and the conflict and the controversy and the unsettled situation that this country faced in 1876, and...

Justice Scalia: Mr. Olson, did Section 15 exist when McPherson was decided?

Mr. Olson: I don't know, Justice Scalia.

I don't know the answer to that, when it was adopted.

I can't recall whether it was a part of the 1887 electoral count statute or not.

I can probably answer that in regard...

Justice Scalia: That would make a difference, wouldn't it?

Mr. Olson: Well, it seems to me it wouldn't make a difference, because of this.

It might... yes, it certainly might make a difference one way, but it still wouldn't make a difference because our concept here, and I think it's quite a rational and actually the only explanation for how you can put these provisions together, Article II and Section 5, and Congress' desire to avoid the very controversy, chaos, conflict, which even...

Justice Souter: Well, but Section 15 assumes that there is controversy and chaos.

Mr. Olson: Yes.

Justice Souter: Section 15 isn't providing for challenges except in situations perhaps exactly like this one.

Mr. Olson: But that's what the country... what essentially Section 15, although it modifies it and structures it somewhat, it was still a situation that Congress was facing in 1876 when it was dealing with the Hayes-Tilden election.

Justice Souter: Right.

Mr. Olson: And by the time it got there, there were dueling slates of electors that were buying... there were exchanges and a lot of things that everyone felt was very destructive to the country.

Justice Souter: But Congress had to face the constitutional fact that under Article II, it could not, or its understanding was certainly, that it could not mandate certain state procedures.

Article II did say the legislature shall decide what they are.

Mr. Olson: Correct.

Justice Souter: So the most that Congress could do in providing for a more orderly resolution of what happened in Hayes-Tilden was to do what it did in Section 5, and that is to say if you do certain things, you can depend upon the results, recognizing that the state might not do those things.

And it then provided, or at least at the present time it is provided in Article, in Section 15, that if you don't do those things, there is a sequence of issues that can be raised to be decided by the Congress.

If Congress wanted this Court to get into the issue at this stage, it seems passing strange to me that despite all the elaborateness of Section 15 there wouldn't have been some mention of Federal litigation proceeding in the Section 15 proceeding.

Mr. Olson: I think that's a very important point, and let me make it: That Congress did say if you do these things, certain consequences will flow from it

Florida did these things, and we submit that there is, that the courts are here to protect the benefit of the bargain that Florida made when it responded to that invitation, because...

Justice Scalia: We have to separate your statutory argument from your Constitutional argument.

To the extent that you are relying just on the Constitution, do you think that Congress could by Section 15 exclude the courts from adjudicating the constitutionality of what the state has done?

Mr. Olson: No, I don't think so.

Justice Souter: But it certainly could express its preference for a scheme whereby the initial litigation, if you will, at this level, would take place in the Congress.

To acknowledge that is not to say that the issue is justiciable or that this Court has somehow been necessarily excluded from the process for all time.

It is simply to say that the first line of litigation at the Federal level seems under the statute to be Congress, and not the Court.

Isn't that a fair reading of 15?

Mr. Olson: That's not a fair reading of Section 5, and let me answer this question, and I would like with the Court's permission to reserve the time...

Justice Souter: Well, I don't think Section 5 goes to the issue.

The question is whether it's a fair reading of Section 15.

Mr. Olson: I don't think that they can be read in isolation.

I think that Section 5 was designed to avoid the problem created by the controversy and the having to resolve this in Congress, which is exactly what did happen in 1876, and was a very unsatisfactory situation.

Justice Souter: And in 1876, Congress did not have...

1877.

the rules with...

Chief Justice Rehnquist: 1877.

Justice Souter: Congress did not have the rules with respect to conclusiveness that it now has under Section 5.

Mr. Olson: That's right.

And it put those rules with respect to conclusiveness into Section 5.

The Florida legislature bought into that scheme and now the Florida Supreme Court, which doesn't have any Constitutional authority pursuant to Section 2 to do so, upset that scheme, deprived Florida of the benefit of doing exactly what Congress wanted to have happen under Section 5.

I would, with the Court's permission, reserve the balance of my time.

Argument of Joseph P. Klock Jr.

Chief Justice Rehnquist: Very well, Mr. Olson.

Mr. Klock, we'll hear from you.

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

Our argument is simply addressed to issues having to do with Florida law, and the point being raised by the Secretary is this, that the law in the state of Florida on November 7 was changed by the Supreme Court of Florida's decision on November 21.

The Secretary is not contesting the right of the Florida Supreme Court to change the law of Florida, is simply pointing, she is simply pointing out, that the law did change.

Justice Kennedy: Does the Secretary maintain that in some instances she has a discretion that a court does not or can a court do whatever she might do, under Florida law?

Mr. Klock: Under Florida law, she has certain discretion that I think a court probably does not have in the protest period, Justice Kennedy, and that would be that she had the discretion to decide whether or not returns could be permitted after that seventh day, and indeed that's based on two things that we have in the record.

One is an opinion that was issued by the Division of Elections that talks about the circumstances in which the Secretary would exercise discretion, and the second is the letter that the Secretary sent to the three or four canvassing boards that requested an extension of time after the 14th deadline had passed.

She sent the letter out, she said, please indicate to me whether or not you intend to file returns after the deadline, and if you do what the reasons are.

She collected a set of criteria, she applied the criteria, and then sent a letter back, and what she did, Justice Kennedy, in the case of the Division's letter, the opinion which, of course, is binding under Florida law on elections officials who receive them, she... the Division head said that there were certain circumstances such as acts of God, hurricanes, and that kind of thing where the discretion would be exercised.

When she came up with her additional reasons for considering whether or not she would exercise her discretion, she indicated a number of them which are also contained within the record.

It's at the Joint Appendix at 21, she indicated where there was a result of voter fraud with a substantial...

Justice Stevens: She said she would exercise her discretion.

Did she say she would have to exercise her discretion in those conditions?

Mr. Klock: I think she would have to exercise her discretion.

Justice Stevens: The court did compel her to?

Mr. Klock: Yes, sir.

Justice Stevens: Do you think that was clear before the opinion of the supreme court in this case?

Mr. Klock: Yes, sir.

Justice Stevens: Let me just ask one general question for your comment on whether it's a change in the law.

To what extent, in your view, was the... did the Supreme Court of Florida consider itself bound by either prior precedent or the constitution of the state which preexisted?

Mr. Klock: In terms of handing down its decision?

Justice Stevens: In terms of the particular result it reached in this case.

Mr. Klock: I believe the Supreme Court of Florida was looking at its law in terms of articulating the law that it wanted to have then and on a going-forward basis.

What it did... and obviously since it's the chief court of the state, it has the right to do whatever it wishes to do with respect to Florida law only bound by whatever separation of powers...

Justice Stevens: Do you think they thought their decision was dictated either by prior precedent or by the constitution of the state?

Mr. Klock: Your Honor, I don't know whether they thought that or not, but that's not what the opinion says.

As a matter of fact, the opinion is pretty clear, they start out by talking about statutory construction, and they hinge everything on the use of the word interpret, and then they sort of turn the word interpret to a use that it's not intended to be, but then when they get to the point of designing the rule of law they're going to go forward on, they don't talk about interpreting the statute.

They then go and base it on principles of equity in the Florida Constitution, and indeed what they end up with, Your Honor, is this statement with respect to the discretion that the Secretary is left with, and that is this... and it's on 35 of the Joint Appendix.

"We conclude that consistent with Florida's election scheme, the Secretary may reject a Board's. "

that's the canvassing board's,

"amended returns only if the returns are submitted so late that their inclusion will preclude a candidate from contesting certification or preclude Florida voters from participating fully in the Federal electoral process. "

Now, Your Honor, there's...

Justice Stevens: I understand your position is that was entirely new?

Mr. Klock: Yes, sir.

Justice Stevens: I'm just wondering, therefore your submission is that it was not dictated by the constitution or by prior precedent?

Mr. Klock: No, Your Honor.

Chief Justice Rehnquist: I thought you said a moment ago that the court, the Florida court did rely on the Florida Constitution.

There's a section of their opinion that's devoted to that.

Mr. Klock: Your Honor, in devising the remedy, they refer to the Florida Constitution, but the issue that we're here on, as I understand it, sir, is whether or not the law changed.

There's no question that they have a right to do what they did.

The only...

Chief Justice Rehnquist: I think perhaps another statement of the issue is to what extent did the Florida Supreme Court, in construing this statute, rely on more general provisions of the Florida Constitution which they cited in their opinion?

Mr. Klock: I think they did rely, in creating the remedy on the Florida Constitution, I believe they created a right that had not previously been seen there, which they have a right to do, but, Mr. Chief Justice, the issue again is whether or not the law that they articulated on November 21 is different than the law that existed on November 7, and how the Secretary of State, in exercising her discretion, was to divine the standard that would be established on November 21.

Justice Scalia: Your position is so long as it's different, it violates Section 5 and therefore we have a right to step in?

Mr. Klock: Well, Justice Scalia, we have not addressed the Federal issues because, I mean, we're in a situation where you have...

Justice Scalia: Well, this is a Federal court what are you here for, if you're not addressing...

Mr. Klock: I understand that, sir.

I apologize.

But we have the Secretary of State here, we have the Attorney General here, and the legislature has filed by amicus, and of course the state has not appeared, so it's a little unusual.

We haven't addressed those issues, but to answer your question, yes, sir.

Justice Breyer: Can you tell me when this petition was filed here, the Secretary had not certified anybody the winner, and now the Secretary has certified a winner, and therefore, I guess, whether we win, whether your side, the side you're supporting wins or loses, it doesn't change that, and I guess that's moot, but my question is, is there any respect in which this really makes a difference, this case?

Justice O'Connor: How?

Justice Breyer: I'm thinking, if it does make a difference, numbers of vote, is that kind of thing right for us to decide now?

How could it make a difference?

What's the consequence of our going one way or the other now in this case?

Mr. Klock: Your Honor, it makes an enormous difference because the relief that has been requested would be for the Court to determine that the law in effect at the time of the election was that manual recounting of ballots would not be permitted to address voter error, which I think has been extensively...

Justice Breyer: We don't have... all... suppose they won and the relief was, suppose your side won, and the relief was, fine, it should have been certified on November 14th or 18th instead of November 26th.

Now, what's the consequence of that?

Just that?

Forgetting what the reasoning is.

Is there a consequence that flows from that, that is real, adverse, you know, significant, concrete that we can predict now as opposed to speculate?

Mr. Klock: The only immediate result would be that you would have a margin that instead of being 536 votes would be 900-some-odd votes, and it would only be added to as a result of whatever was added by the overseas ballots.

Justice Breyer: Fine.

Then this case has said, we've said a claim is not ripe if it rests upon contingent future events that may not occur as anticipated or indeed may not occur at all.

And so what I wonder, is this in this realm of speculation as to whether or not it will or will not make a difference, a difference to the outcome of the election.

Mr. Klock: It will make a difference to the outcome of the election because there is an ongoing contest which is interrelated and is involved with the Supreme Court's opinion, and of course because the Supreme Court of Florida, in coming up with the remedy that they came up with, completely changed the period of time from a relatively short period of time, seven days for a protest and much longer period for a contest, we now have a situation where there is 19 days for the protest and 16 days for a contest.

Justice Scalia: Well, it's too late... it's too late to lengthen the time for the contest.

I mean, to the extent that they have shortened the contest time, you know, that's water over the dam right now, isn't it?

Mr. Klock: Yes, Justice Scalia, but the issue here... I'm sorry.

Justice Scalia: Is it not the case that if the votes are, are as, as they have been shown to be under the Florida Supreme Court's opinion, the race is much closer, and therefore some counties under Florida law would conduct recounts that otherwise would not conduct recounts.

Doesn't whether a recount is conducted depend upon how likely it is that the recount is going to change the outcome?

Mr. Klock: Your Honor, if the law is returned to the point it was on November 7, there is no right to a manual recount to correct voter error, and that will end the litigation that currently exists in the State of Florida, which were the opinions of the Secretary of State's Division of Elections that were issued and also the state of the law as it existed at that point in time.

The record shows very clearly that there was no dispute that there were any problems with voting machines or any other tabulation problems with voting machines.

It was simply when they went through the process of what is, Justice Ginsburg, a discretionary right to a manual recount, not a mandatory one, when they went into that and did the test, each of those canvassing boards did not find any problem with a mechanical problem.

It was simply a problem in terms of voter error.

Justice Scalia: The secretary took the... never mind.

Justice Kennedy: Thank you.

Argument of Paul F. Hancock

Chief Justice Rehnquist: Thank you, Mr. Klock.

Mr. Hancock, we'll hear from you.

Mr. Hancock: Mr. Chief Justice, and may it please the Court: In accordance with Article II of the United States Constitution, the Florida legislature has directed the manner of selecting presidential electors in Florida

That manner is pursuant to a popular vote that's implemented pursuant to the general election laws of the State of Florida.

Justice O'Connor: I guess Article II permits the legislature in general to make a choice that it could itself select the electors?

Mr. Hancock: Yes, Justice O'Connor.

We agree with that.

In implementing the election law, each branch of the Florida government plays a role.

For example, the judiciary, or the executive branch of our government has not found itself bound by the technical, hypertechnical requirements of the election law.

An example of that is that the, the executive branch has implemented a rule, not a law, but a rule that allows absentee ballots from overseas military voters to be received after the 10 days after the close of the polls.

Under the law of the State of Florida, all absentee ballots have to be received by the time the polls close on election day.

Justice Kennedy: In your brief you say, you conclude that the Florida Supreme Court like, I think it's page 12, like any state court, exercised its inherent equitable powers to remedy a threat to fundamental constitutional rights, and it rewrote the certification deadlines according to that power, did it not?

Mr. Hancock: The only... yes, Justice Kennedy.

The only equitable power exercised by the court was setting the deadline.

Justice Kennedy: Isn't that such an amorphous general abstract standing that it can't possibly be said to be a law that was enacted and in place at the time of the election?

Mr. Hancock: No.

The laws were enacted well before the election.

What happened was that in the court...

Justice Kennedy: Of course, the Constitution was there before the election, the Due Process Clause is before the election, but what we are talking about is having laws of sufficient specificity and stability that people can rely on them in advance and not have them changed after the fact.

And your brief makes it very clear that they exercised their inequitable powers to remedy a threat to fundamental constitutional rights and changed the deadline accordingly.

It seems to me that's no standard... it's an enviable standard, something we might all agree with in the end, but as far as the requisite specificity to satisfy 3 U.S.C. Section 5, I just don't see it as there.

Mr. Hancock: The court had to do something, Justice Kennedy.

It was faced with conflicts in Florida law.

They had conflicting opinions from the Florida Attorney General as to the meaning of the law and the Secretary of State as to the meaning of the law.

As a result of...

Justice Kennedy: Maybe it had to do something, but did it comply with 3 U.S.C. Section 5?

Mr. Hancock: I submit, Justice Kennedy, that 3 U.S.C. Section 5 doesn't require the state to do anything, it merely says...

Justice Kennedy: But did it comply with that part of 3 U.S.C. Section 5 that requires that laws be enacted and in place prior to the election in order to get the safe harbor?

Mr. Hancock: Yes, it did.

The laws were in place before the election.

And those laws granted to the judiciary...

Justice O'Connor: Well, but certainly the date changed.

That is a dramatic change.

The date for certification, right?

Mr. Hancock: Yes.

Justice O'Connor: And it was done by the court.

Mr. Hancock: Yes, it was done pursuant...

Justice O'Connor: And the legislature had very clearly said, you know, seven days after, that's the date, and it just does look like a very dramatic change made by the Florida court, and I'm wondering if that is consistent in fact with the notion, expressed at least in Section 5, so that the result would be if it did go to Congress, it would be a change.

Mr. Hancock: The... I agree that the date was implemented pursuant to the court's equitable powers.

Other than that, it was a routine exercise in statutory construction.

The court was faced with a situation first of all where because of conflicting advice the counties had started and then stopped conducting manual recounts because of advice from the secretary of the state which the supreme court ultimately concluded to be erroneous.

Justice Scalia: Yes.

And that advice was... and this was really the beginning of all of the problem, her advice was that the provision providing for recounts, manual recounts, not requiring them but giving them as one of the options, only came into play when there was some defect in the, in the machinery, and it was not available for voter error, that is for voters who didn't punch the cards the way they were supposed to.

And the attorney, your office came out with the opposite conclusion.

The secretary's brief contends that that had always been the rule in Florida.

Is that the case?

Do you know of any other elections in Florida in which recounts were conducted, manual recounts, because of an allegation that some voters did not punch the cards the way they should have through their fault?

No problem with the machinery... it's working fine.

You know, there were what, pregnant chads, hanging chads, so forth?

Mr. Hancock: No, Justice...

Justice Scalia: Did that ever happen...

Mr. Hancock: No, I'm not aware of it ever happening before.

But, I can say that the Supreme Court of Florida for 100 years has put a duty on election officials to discern the intent of the voter, and while the secretary of the state refers to it as voter error, when the ballot is punched, that's, under the laws of the State of Florida as interpreted by the supreme court, that voter has cast the ballot, even if the chad did not...

Justice Kennedy: Is it your position that any interpretation the Supreme Court of Florida makes to implement the will of the people is never a new law?

Mr. Hancock: The supreme... yes.

I can't say ever, but I'd say that on the case before the court, all that was before the court was ordinary statutory construction, which must be, the result of it whether this Court would agree with it or disagree with it, must be respected by this Court.

That's the very foundation of federalism.

Justice Ginsburg: Mr. Hancock, are you relying on the Florida Supreme Court statement at least twice in its opinion... now I looked at the page to which Mr. Klock referred, page 37-A, it says for the second time that Section, the section governing manual recounts appears to conflict with the sections that set a deadline, and it's reconciling that conflict.

Mr. Hancock: Yes.

Justice Ginsburg: Whether it was wrong or right, that's what it said its mission was and that's what it did.

Mr. Hancock: Yes.

Both in words and in operation, the statutes could not work together because of the time for requesting manual recounts, the extent of the job of manual recounts...

Justice Scalia: What is the section that requires manual recounts?

Mr. Hancock: It's 102.

well, 102.166 authorizes manual recounts.

Justice Scalia: That's different from requires.

Mr. Hancock: Yes, but once it starts, Justice Scalia, once it's authorized, if the initial sample recount shows an error that might effect the outcome of the election...

Justice Breyer: Then...

Mr. Hancock: The board is then required to, among other things, conduct a full manual recount.

Justice Kennedy: No, no.

Justice Scalia: It's required to do one of three things, one of which could be a manual recount.

It could decide to do one of the other two instead.

Mr. Hancock: Yes.

The problem faced by the counties...

Justice Scalia: So there is really... there is... I mean, the Court says that there is a requirement for a manual recount but I don't see anything in the text of the statute that requires a manual recount.

Mr. Hancock: The statute requires that the election officials attempt to discern the cause of the error.

Here the cause of the error was that, in these counties, was that the machines were not able to read ballots, 10,000 ballots in Palm Beach County, the machine did not read as including a vote for president.

That was the issue so that the solution to that was not the machines, even when they're operating properly would not read these ballots, so what was left of the county canvassing boards then was to do the full manual recount, and the language of that statute again says they shall do a full manual recount in those circumstances.

Justice O'Connor: It says that the board may authorize the manual recount, it doesn't require it.

If it does authorize it, then it tells it how to do it and says they shall appoint as many counting teams as necessary, presumably as necessary to do it within the time limit.

Mr. Hancock: Yes, Justice O'Connor, but, again these... under the law these requests can be made up to the time of canvassing... that means up to six or seven days... and also the number of ballots at issue here are between 650,000 in Palm Beach County and also 900,000, up to 900,000 in Broward County.

Justice Scalia: If that is a statutory problem, the court's resolution didn't really solve it, did it?

Because even with her extended time period the same statutory problem exists.

There still isn't enough time under the extended deadlines for some of these counties that have an enormous number of votes to conduct a manual recount, isn't that right?

Mr. Hancock: Well, let me...

Justice Scalia: I mean to resolve a supposed conflict in the statute in a manner that leaves in place the same problem that existed before seems to me not a real resolution of the statutory problem.

Mr. Hancock: The supreme court tried to blend it all together to make it work, Justice Scalia, and again it came up with a solution.

The Secretary of State's argument here is based on... the Secretary of State herself recognized that she had the discretion under Florida law to accept returns filed outside of that seven-day deadline.

A breakdown of the machines, in her view, would justify late returns.

A failure of the machines to read ballots would not justify late-filed returns.

The supreme court said that the legal standard she was using was wrong.

That... we submit that that decision of the supreme court is the law in the state of Florida.

Chief Justice Rehnquist: I'm going to extend your time two minutes, Mr. Hancock, because you haven't had a chance to say a lot yet.

Mr. Hancock: Well, I don't need the extension time, Your Honor.

If there's no other questions, I will stop.

Thank you.

Justice Breyer: Thank you.

Argument of Laurence H. Tribe

Chief Justice Rehnquist: Mr. Tribe, we will hear from you.

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

I think I would want to note at the outset that the alleged due process violation which keeps puffing up and then disappearing and has as far as I can tell not appeared at the state supreme court, did make one appearance in the reply brief here, is really not before the Court, and for understandable reasons, because although it is part of the popular culture to talk about how unfair it is to change the rules of the game, I think that misses the point when the game is over, and when it's over in a kind of photo finish that leaves people unsure who won, and then the question is, how do you develop great, sort of greater certainty, and a rather common technique is a recount, sometimes a manual recount, sometimes taking more time would be rather like looking more closely at the film of a photo finish.

It's nothing extraordinary.

It's not like suddenly moving Heartbreak Hill or adding a mile or subtracting a mile...

Justice Kennedy: You're seeing no important policy in 3 U.S.C. Section 5.

Mr. Tribe: No, no.

Justice Kennedy: In fact, we can change the rules after... not important... the popular culture...

Mr. Tribe: Certainly not, Justice Kennedy, but I read U.S.C. Section 5... that is 3 U.S.C. Section 5 not as a requirement that, for example, one never add resources to checking how a particular ballot was cast.

If you look at the language, I think it's really much too casual to say of it that all of the laws must stay fixed in order to have the safe harbor apply.

As I'll try to argue in a few minutes, that's not really a question for this Court, but for the Congress, but the language of Section 5 is that... and I'll just read what I think are the key words,...

Justice Souter: an you tell us where you're reading from?

Mr. Tribe: Actually, I'm just reading from a copy of the U.S. Code, 3 U.S.C. Section 5, not from any... the page I can identify...

Justice Scalia: It's in the appendix to the petitioner's brief, I'm sure, isn't it?

Mr. Tribe: Yes, although I'm afraid I don't have it in front of me.

Justice Souter: Page 3A of the blue brief.

Mr. Tribe: Thank you, Justice Souter.

Page 3A of the blue brief, I am reliably informed.

So if any state...

Justice Kennedy: That won't get you an extra two minutes.

Mr. Tribe: Well, I tried.

I tried.

If any state shall have provided, and then it says by laws enacted prior to the day fixed for the appointment of the electors, a fancy way of saying election day, for the final determination of any controversy or contest about the appointment of electors... and here's the key phrase, I think... by judicial or other methods or procedures at least six days before the time fixed for the meeting of the electors, that means in our situation, December 12, then the final determination shall be conclusive and govern the counting in Congress.

Now, the question for Congress, I suppose, would be, although I don't see how this Court could get into that question at this stage, but the question would be, is a particular change extending a deadline for exigent circumstances because a recount has been authorized, a change in the judicial or methods of procedures for resolving the contest.

Chief Justice Rehnquist: Let me just ask you a moment, you say you don't think the statute permits this Court to get into the matter at this time.

Are you suggesting there could be any judicial review of a decision by the Congress to count one set of electoral votes?

Mr. Tribe: No, I don't think so, Mr. Chief Justice, it's just that I don't trust my own imagination to have exhausted all possibilities.

For example, in the case in, I think it was 1890, in Fitzgerald v. Green when this Court held that only states can punish fraudulent voting for presidential electors, it got into the act sort of obliquely and at an angle, and that had a bearing on the question of how the presidential electoral slate might be composed, but it certainly didn't get into this.

Chief Justice Rehnquist: No, it certainly was quite different from...

Mr. Tribe: Very.

Chief Justice Rehnquist: this hypothetical.

Mr. Tribe: That's certainly right.

Justice Kennedy: You suggest in your reply brief that it is not... I think you said it's not self-evident that the Florida legislature at this time has the right to appoint any slate of delegates because the Congress has set the date, and the date is the general election day.

If that is so, doesn't this mean that when we talk... think about justiciability, we must be very careful to preserve the role of the Court.

You have said or suggested here in your reply brief that the Florida legislature now has no role.

You are now suggesting that this Court has no role.

That means the Supreme Court of Florida is it, so far as a judicial interpretation of the consequences of 3 U.S.C. Section 5.

Mr. Tribe: Well, Justice Kennedy, first of all I do want to be clear that in our view the question of whether and when and how the Florida legislature can enter the picture is in no way presented here.

That paragraph was intended to suggest that it's not obvious that the views of some that there's no problem is right.

Secondly, if it were the case that the Florida legislature could not simply decide, well, we're tired of all this counting, we're moving in, and that this Court cannot decide whether the conditions of 3 U.S.C. Section 5 are met, it would then remain only for Congress to make a determination and adding the Florida legislature would not, after all, have added an adjudication.

Justice Kennedy: And my point is that puts hydraulic pressure on your nonjusticiability argument and makes it a very, very important argument and a critical argument in this case.

Mr. Tribe: Well, perhaps, Justice Kennedy, but I frankly can't see how it would affect the decision in this case.

After all, you have before you a judgment of the highest court of the state.

As Justice Ginsburg and others have suggested, it would ordinarily be the case, surely, that one would not go out of one's way to read the judgment as a breach of faith with the duties of trying to reconcile provisions that are...

Justice O'Connor: Well, I guess in the area, though, of presidential electors it could be that that court, as all courts would be, have to be informed, at least, by the provisions of Section 5 in reviewing the laws enacted by the legislature of the state.

I mean, it had to register somehow with the Florida courts that that statute was there and that it might be in the state's best interest not to go around changing the law after the election.

Mr. Tribe: Well, Justice O'Connor, I certainly agree that if the Florida Supreme Court adverted to 3 U.S.C. Section 5, and as Justice Kennedy asked earlier, got it wrong, then there would be a Federal issue for this Court.

Would it be, I wonder, a Federal issue...

Justice O'Connor: Well, is there a Federal issue if the Court doesn't...

Mr. Tribe: No.

The answer is no.

Justice Breyer: advert to that?

Mr. Tribe: It would be nice.

But remember it is...

Justice O'Connor: Because of Article II, which, after all, does give the legislature plenary power and must have wanted... it must have wanted to have the laws in place so that it wasn't... so that Florida wouldn't risk losing its electoral votes.

I mean, the legislature had to want that by enacting laws, and perhaps the Florida court has to be aware of the consequences to the state of changing the rules.

Mr. Tribe: But, Justice O'Connor, under Article II, Section 1, Clause 2, the authority to regulate the manner of the choice of electors is vested in the state legislature.

If the state legislature decides from the beginning to exercise that authority by instructing the various institutions, certainly not just the courts, the attorney general, the secretary of state, in very particular ways to exercise their roles in the process, with a specific view of...

Justice O'Connor: Well, it certainly did by enacting that date.

Here is the certification date.

How could it have been clearer?

Mr. Tribe: Well, I suppose it could be a violation of Florida law if the enactment of that date is construed as a direction to a particular authority like the secretary of state or the state's highest court to take certain actions in order to get the benefit of this bonus, but only a violation of Federal law.

I don't see how you got a...

Justice Breyer: What Florida law would that be?

Mr. Tribe: Of state law.

I'm sorry.

Chief Justice Rehnquist: Are you talking about the Florida Constitution?

Mr. Tribe: Well, it might have been a violation...

Chief Justice Rehnquist: But then you run into the Blacker case.

Mr. Tribe: But it seems to me that the Federal question, which is really what brings us here, can only arise if 3 U.S.C. Section 5 is something other than what Mr. Olson called the indemnification of the state.

Chief Justice Rehnquist: It can also arise under the section of the Constitution that was construed in Blacker.

That's quite independent of 3 U.S. 5.

Mr. Tribe: That's right, if one concluded that Florida had violated its duty to empower the legislature to take these regulatory steps.

Chief Justice Rehnquist: If one concluded that the Florida legislature had relied on the state constitution in a way that the Blacker case says it may not in construing the statute.

Mr. Tribe: I think that's possible, Mr. Chief Justice, but the judgment before you doesn't provide even an inkling, I think of proof about those matters.

All we have...

Justice Breyer: That's what we have been arguing...

Chief Justice Rehnquist: As to whether it does or whether it doesn't.

Mr. Tribe: Well, I think we have been arguing several interrelated things.

One of the things we have been arguing is whether one could in good faith reach the conclusion, novel as it was in some respects, as Justice O'Connor points out, that the Florida Supreme Court reached.

Now, if the answer to that question was no, perhaps if there were a due process issue in this case, and if someone had a protectable interest that was injured, that would be relevant.

But the Federal question that makes that relevant here would arise only if one forgot that 3 U.S.C. Section 5 is all carrot and no stick.

Chief Justice Rehnquist: No.

I don't agree with you on that, Mr. Tribe.

It seems to me a Federal question arises if the Florida Supreme Court in its opinion rather clearly says that we are using the Florida Constitution to reach the result we reach in construing the statute.

I think Blacker is a strong argument they can't do that.

Mr. Tribe: Well, that they can never avert to their own constitution?

Chief Justice Rehnquist: Well, certainly it stands for the proposition you couldn't do it then, in those circumstances.

Mr. Tribe: Well, what would it be, I wonder, about the circumstances here that would say that in reconciling these provisions which at first we were told were mandatory, then we were told they are not mandatory, they give discretion, and now we are told that the real issue is simply did the court in putting a boundary on that discretion, do something federally impermissible.

What would it be about that sequence that would implicate...

Chief Justice Rehnquist: Well, you know, if the Supreme Court of Florida simply said in its opinion, look, these sections of the statute conflict, we've got to under our judicial principles resolve it one way or the other, but... but it doesn't say that.

It goes on to say, look, in the light of the Florida Constitution and the general rights conferred there, we are construing it this way.

Mr. Tribe: It seems to me that as a tiebreaker, as a way of shedding light on the provisions that are in conflict, so long as it's not done in a way that conflicts with a Federal mandate, they are not violating any...

Justice Scalia: Mr. Tribe, I don't... I don't agree with that.

I don't... I don't think that the Florida Supreme Court used the Florida Constitution as a tool of interpretation of this statute.

If you look at its opinion, it's separated into, into various sections, issues; IV, legal opinion of Division of Elections; V, the applicable law; VI, statutory ambiguity; and that's... and VII, legislative intent.

That's the section where they construe the statute in view of these ambiguities and so forth.

That section concludes, under this statutory scheme, the county canvassing boards are required to submit their returns to the department by 5 p.m. of the seventh day following the election.

The statutes make no provision for exceptions following a manual recount.

If a board fails to meet the deadline, the secretary is not required to ignore the county's returns, but rather is permitted to ignore the returns within the parameters of this statutory scheme.

So what the statutory interpretation gives you is a firm termination date of December 7th and discretion in the secretary.

The opinion continues, VIII, the right to vote.

The text of our Florida Constitution begins with a declaration of rights.

And it goes on to say that to the extent the legislature may enact laws regulating the electoral process, those laws are valid only if they impose norestraints on the right of suffrage contained in the Constitution.

In other words, I read the Florida court's opinion as quite clearly saying, having determined what the legislative intent was, we find that our state constitution trumps that legislative intent.

I don't think there is any other way to read it, and that is, that is a real problem, it seems to me, under Article II, because in fact there is no right of suffrage under, under Article II.

There is a right of suffrage in voting for the legislature but Article II makes it very clear that the legislature can itself appoint the electors.

Mr. Tribe: It seems to me that it's already been conceded that the legislature can delegate that function to the judiciary.

And when Justice Kennedy asked if it can delegate the function to the judiciary, and that is what McPherson seems to suggest, then can it not delegate something less, that is, can it not give the judiciary a role of the sort that it's exercising here?

After all, the legislature, and this is important... it's not true in every state... the legislature itself repromulgates the Constitution every several years and then it's ratified by the people.

Justice Souter: Isn't there another... go on.

Justice Scalia: No.

Justice Breyer: That's all right.

Justice Souter: Isn't there another way of looking at what the Florida court did, and that was in effect to apply the statute, the interpretative criterion, that where there is any discretion for interpretation, an unconstitutional result should be avoided, and because you have here a statute as I understand it that regulates both Federal and state recounts, that much is, I think is clear.

Mr. Tribe: Right.

Justice Souter: The only way to avoid an unconstitutional meaning of the statute so far as Florida law was concerned was to get into this constitutional concern about preserving the franchise, and that because the legislature intended one standard to cover both Federal and state recounts, it therefore is valid to consider the state constitution in order to derive a general meaning that will apply to a Federal, as well as a state election.

Justice Breyer: Can you look at it that way?

Mr. Tribe: I fully accept that view, Justice Souter.

I'd supplement it with one important point.

We are not dealing here with a decision in which within the gray area where a court could reasonably go either way, this court simply said we don't care about these Federal considerations.

It in particular exercised its equitable powers in favor of the Petitioner in order to facilitate meeting the December 12 deadline while still being able to have electoral contests.

That December 12 deadline comes purely from Federal law.

Justice Breyer: Can you... can you just go back to your characterization of the opinion.

I think we would all agree that given that the legislature has to select the manner, a state can't say, our Constitution selects the electors.

I suppose that's...

Mr. Tribe: That's right.

Justice Breyer: All right, but thinking of this opinion, suppose the court had said, look, we reach our result based on the canons we found in Blackstone.

Now, nobody is going to say they said Blackstone is selecting the electors, right?

Mr. Tribe: I think that makes sense.

Justice O'Connor: All right.

Justice Breyer: Now, I suppose they said, we reached this decision based on the values found in the Constitution.

That would be like Blackstone.

But suppose they say, well, the legislature wants us to do X, but our Constitution requires us to do not X.

That might be different.

Mr. Tribe: It might be different.

Justice Breyer: Now, what is it that they have done here?

Mr. Tribe: I certainly don't think they have done the third.

They did not say... I think when they underscored the presence of language that Justice Scalia read about what's mandatory, they were simply being candid about the fact that they were acting in conflict with one part of the statute, but the adjacent...

Justice Scalia: It's in a separate section of the opinion, Professor Tribe, that is entitled the right to vote.

It is after the legislative intent section and it says categorically, to the extent the legislature may enact laws, they are invalid.

And I suggest perhaps the reason that the court did it is that however expansive the doctrine of constitutional doubt is, there is no way that it can make December 7 mean anything except December 7.

I mean, they were almost constrained to use the constitution to override the, the firm deadline...

Mr. Tribe: Justice Scalia...

Justice Scalia: that was explicitly set forth in the constitution.

Mr. Tribe: Justice Scalia, both you and I think at one point Justice O'Connor, in pointing to the particular dates that came out differently under the approach that this Court used from what would have emerged if they had looked only at 102.111 are making a mistake, with all respect.

It's not as though this Court promulgated a rule for the future about December 7th in commemoration of Pearl Harbor, we say December 7 is the day.

No.

What they did was say we have to find a date which will accommodate these conflicting statutory provisions and policies in light of what our constitution tells us, and we surely... it would amaze, I would think amaze this Court to see anyone saying that because an opinion was organized under Roman numeral headings...

Justice Scalia: Professor Tribe...

Mr. Tribe: in such a way that...

Justice Stevens: Isn't it also true, Professor Tribe, that part 8 of the opinion relies on four things... the Florida Constitution, earlier Florida decisions construing statutes, an Illinois case, and a Federal case.

Mr. Tribe: Absolutely.

Justice Stevens: Not just their constitution.

Mr. Tribe: That's right, and surely...

Justice Souter: Is it also true that the inability to use Section 7 depended in the Florida Supreme Court's reasoning not on the existence of the constitution as the sole reason, but on the inability to make the December 7 date final and provide for the recounts within the times in which recounts can be called for.

What I'm saying is, didn't they say that the date of the 7th cannot stand, not because of the constitution alone but because there are other provisions in the statute that cannot be accommodated with sections... with the 7 date?

Mr. Tribe: Exactly.

And I guess to take a broad...

Justice Ginsburg: They said that twice, and I think that's critical if you add to that that we read a decision of a state court in the light most favorable to that court and not in the light least favorable.

I suppose there would be a possibility for this Court to remand for clarification, but if there's two readings, one that's questionable, one that isn't, all of our decisions suggest that we read the one...

Mr. Tribe: Especially, I think, Justice Ginsburg, when the odds that these conceivable Federal problems are indispensable to this result, are overwhelmingly negative.

It's not as though one cannot explain the result this Court reached in the most conventional standard ways, and the fact that...

Justice Scalia: Professor Tribe, I would feel much better about the resolution if you could give me one sentence in the opinion that supports the second of these supposed alternative readings, that supports the proposition that the Florida Supreme Court was using the constitutional right to vote provisions as an interpretive tool to determine what the statute meant.

I can't find a single sentence for that.

Mr. Tribe: Justice Scalia, I can do a little better than find a sentence.

The entire structure of that part of the opinion, as Justice Stevens points out, would be incoherent if the constitution was decisive.

That is the highest law in Florida.

Why bother with all the rest if that is anything more than an interpretive guide.

Justice Scalia: You would bother with it because having decided very clearly what the statute requires and finding no way to get around the firm dates set, you say the reason it's bad is because of the state constitution.

That's how it's written.

Mr. Tribe: But, Justice Scalia...

Justice Scalia: They might have tried it another way, but it seems to me they didn't...

Mr. Tribe: They also say that the provision that reaches the result that conflicts with the authorized recounts was written in 1951, that in 1989 they wrote a provision that unmistakably created discretion, and we haven't yet discussed this provision, also created the provision that when the returns are filed late, it doesn't say throw them away, it doesn't say give them back, it says fine every member of the canvassing board $200 a day.

That would be a totally crazy provision.

As this opinion understands, if you were not to reach a reconciliation of this sort, this result was overdetermined under Florida law.

It might be true that they said the constitution also points this way, but there isn't a sentence in the opinion that suggests that without that constitutional argument the result would have to be different.

Justice Breyer: What is the November 26th date?

Is that the seven day date moved or is that some kind of a date that tries to reconcile the ultimate point after which the Secretary in exercising her discretion no longer has to accept the late returns?

Did it move the date from the statute?

Has it created a new date about this discretion?

Chief Justice Rehnquist: What is it?

Mr. Tribe: Well, it looks to me like an exercise of the chancellor's foot, as it were, in this particular case.

When I saw the date, November 26th, I couldn't come up with an algorithm or a formula that would generate it, but the court was confronted with the task of drawing, as this Court has recognized, what are sometimes inevitably arbitrary lines; that is, it said it was not consistent with the overall scheme of the statute to require these recounts, which had just begun, to terminate.

That truly would be a promise to the ear to be broken to the hope, like a munificent bequest, Justice Jackson said...

Justice Kennedy: If the legislature...

Mr. Tribe: in the pauper's will.

Why tell people the count if you won't count it?

Justice Kennedy: And if the legislature had jumped into the breach and said this same thing, would that be a new statute or new enactment under 5 U.S.C.?

Mr. Tribe: I... honestly, Justice Kennedy, I'm not sure because the language that I quoted from 3 U.S.C. Section 5 focuses on the institutional dispute resolution arrangement that is in place, and if you look at the legislative history in the decade of hearings in the period after the Hayes-Tilden debacle, that history focused on the importance of having a fixed tribunal which you could look to rather than one cooked up at the last moment, and indeed what they seem to be most afraid of was the political entry of legislators and executives at the 11th hour.

There was no focus at all.

Justice Kennedy: But are you saying you can't tell us whether they, in the hypothetical, supposed that it would be a new enactment?

Mr. Tribe: Well, there are certainly no cases on the subject.

The language gives me very little guidance.

Since the section is addressed to Congress, neither my opinion about it nor the Court's opinion is necessarily...

Justice Kennedy: You don't think you could tell us what you might advise the Congress if you were the counsel for the Judiciary Committee.

Mr. Tribe: I think I would advise the Congress that it is not a new enactment, that it is an entirely reasonable construction of an existing enactment as to which the only alternative construction is to make it self-destruct, and to make it internally contradictory, and I honestly don't think if I were advising Congress that I would say it's a new construction.

I do think, also, that some people reasonably could argue the contrary, and I guess I think that this language should be interpreted whether by a court or by Congress in a way that gives some deference to the state government and its organs, and I think any degree of deference here is inconsistent with saying that there's been a Federal violation, especially when... I want to remind us all about the context.

Are we going to say that this paragraph in this opinion says that Florida is in breach of Article II of the Constitution in general?

Hard to say.

I don't think so.

Justice O'Connor: There should perhaps be some deference, though, to the concept expressed in Article II, that it is the authority of the legislature and some special concern about what the legislature may have said.

Mr. Tribe: Yes, but if the legislature is entirely happy not to completely delegate this power to the courts, which Article II would permit, but rather to allow the courts to exercise a somewhat more flexible role than the one that the critic of this opinion would be embracing.

That's within the power of the legislature of Florida.

Justice O'Connor: Yeah, but who would have thought that the legislature was leaving open the date for change by the court?

Justice Scalia: Who would have thought that?

Mr. Tribe: Anyone.

If you just read the statute in 1989 and it says may.

It says she may reject the late returns.

Justice Breyer: That doesn't change... that's not the date.

Mr. Tribe: No, the date is the one from which the may is measured.

That is, you're supposed to get it in by seven days later.

What if you don't?

Well, if you don't, she may or she may not reject them.

Now, anybody reading that would realize that's a deadline only in a kind of Pickwickian sense.

It's not a real deadline.

She's got discretion.

Certainly if there's an act of God of the sort Justice... was it Justice Stevens... asked about...

Justice O'Connor: Yes, well, then the Secretary came in and argued and said, yes, her discretion was if it were an act of God or a machine breakdown she would exercise her discretion.

Mr. Tribe: And it's an entirely normal exercise of judicial interpretation to say that this statute is not limited to God and machines.

Justice Scalia: Professor Tribe, can I ask you why you think the Florida legislature delegated to the Florida Supreme Court the authority to interpose the Florida Constitution?

I mean, I... maybe your experience with the legislative branch is different from mine, but in my experience they are resigned to the intervention of the courts, but have certainly never invited it.

Mr. Tribe: Well, I have to say my experience parallels that...

Justice Scalia: What makes you think the Florida legislature affirmatively invited the Florida Supreme Court?

Mr. Tribe: The odd thing is that the system in Florida involves their own repromulgation of the constitution, and their scheme with respect to the resolution of disputes over elections draws a sharp distinction between elections to their own House and Senate, which they won't trust the courts with as far as they can throw them.

Those are to be resolved exclusively in the House and Senate, and all others are to be resolved in the courts under a standard that they understandably preferred.

Justice Scalia: They are resigned, that they are resigned to, but they need not be resigned to the Florida Supreme Court interposing itself with respect to Federal elections, they need not be because the Florida Constitution cannot affect it.

And I... I just find it implausible that they really invited the Florida Supreme Court to interpose the Florida Constitution between what they enacted by statute and the ultimate result of the election.

Mr. Tribe: Well, I suppose if they were at all far-sighted, if they looked at their own work and saw how self-contradictory it was, they might say we would want someone with the authority to reconcile these provisions to do so in the light not only of the literal language but of the fact that they are dealing with something very important, the franchise, that disenfranchising people, which is what this is all about, disenfranchising people isn't very nice.

Justice Breyer: Wouldn't justice...

Mr. Tribe: And it violates the Federal as well as the state Constitution.

Justice Souter: But wouldn't Justice Scalia's suggestion be a stronger suggestion if they had dealt by the statute only with Federal elections or only with a presidential election as opposed to dealing with both state and Federal in the same statute?

Mr. Tribe: Well, it's not uncommon, given the convenience of having similar regulations apply on election day not to bifurcate.

Oregon v. Mitchell, after all, confronted the nation with a problem...

Justice Kennedy: Right.

Justice Souter: But when they... when they don't bifurcate, it's reasonable to suppose that they expect their statute to be construed, number one, as one statute, not as having different dates for different, for state and Federal; and, number two, to be construed so far as the state concern arises in accordance with the state Constitution, and if that is so, then the result is they would expect a state constitutional concern to inform their interpretation of a statute which ultimately governs Federal as well as state.

Mr. Tribe: And they would recognize that when the Federal election involved the presidency of the United States with the special problems of the Electoral College deadline, they might emerge with rather different deadlines and to some extent a different approach for the... two elections.

Justice Scalia: But there are already different deadlines for Federal elections, aren't there, because of the Federal statute concerning overseas ballots?

Mr. Tribe: Yes.

That's... that's entirely true.

Justice Scalia: So that's, that's going to be different anyway.

Mr. Tribe: And there is an administrative order...

Justice Souter: But it's as a result of Federal law, isn't it?

Mr. Tribe: Well, there is a consent decree arising out of Federal law.

There was the Federal general statute...

Justice Souter: But it wasn't the legislature's choice, it was Congress' choice that required that.

Mr. Tribe: That's right.

In 1986, there was a congressional statute that already created that difference.

Justice Ginsburg: Mr. Tribe, before you finish, I would like to know whether you are conceding some of the things you said.

Sounds like maybe you are.

But the Florida legislature under Article II, Section 1, could say we don't want any judicial review of anything about the manner in which we say electors should be appointed.

Does the Florida legislature have the authority to cut out judicial review?

Mr. Tribe: No.

No, I certainly don't think so.

They cut out judicial review... even this may not be entirely consistent with the Florida Constitution.

They cut out judicial review for the election of their own members in the House and Senate.

I certainly don't think they would have the authority to expel the Federal judiciary from the election of senators and representatives.

Justice Ginsburg: No.

Justice O'Connor: I mean the state judiciary.

Justice Ginsburg: The state judiciary.

When it says each state shall appoint electors in such manner as the legislature thereof may direct.

May the legislature direct as to the Florida Supreme Court, and Florida Supreme Court we don't want you to review whatever we do?

Mr. Tribe: I'm not actually clear about that, Justice Ginsburg.

I have thought about it a lot.

It seems to me that under Smiley v. Holm and similar cases, the general principle is that the Constitution takes the state government and its arrangement as it finds it, and that when the legislature is identified, that really does not mean the legislature in some specialized capacity, as with Article V.

Now, if that's the case and if it's therefore assumed that the legislature is surrounded with both executive and judicial authority, then a decision by the legislature to completely exclude the judiciary from any possible role, the state judiciary, might be inconsistent with the underlying meaning of Article II itself.

Justice Ginsburg: Well, could the state legislature at least now say in light of all this confusion, we enact a law today saying this is the way electors will be selected?

Is that open to the legislature now?

Mr. Tribe: I'm not sure.

That's very much like my inability to answer because I honestly have not reached a conclusion that it's not presented by this case.

I don't know whether the legislature could do the further thing of naming electors, and if it doesn't do that...

Chief Justice Rehnquist: Thank you, Mr. Tribe.

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

Rebuttal of Theodore B. Olson

Chief Justice Rehnquist: Mr. Olson, you have four minutes remaining.

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

May it please the Court: It seems to me that it's very difficult to read the Florida Supreme Court decision as saying anything else other than the Florida Constitution in their view, in that court's view, is trumping everything else

The second paragraph of the conclusion says because the right to vote is the preeminent right in the declaration of rights of the Florida Constitution and so forth, this opinion is full of language...

Justice Breyer: But suppose they refer to the declaration of the rights of man, to 1789, the French revolution, I mean, the right to vote is a value in the constitution.

Are they actually saying... I didn't see it?

Mr. Olson: They are saying...

Justice Breyer: Or are they are saying the statute means one thing, but the statute is unconstitutional because the Constitution of Florida says the opposite.

I didn't see that.

Mr. Olson: I think that the only reasonable fair reading of the decision is that the Florida Supreme Court felt that, and it says it over and over again, that we are going to be... attempt to discern the will of the people, the will of the electorate and discern, and enhance in whatever way we possibly can the right to vote.

And because of that, these provisions of the statute which are very much quintessentially legislative, the timetables that are involved in this statute, particularly the November 14th deadline, is a part of a composite package.

There is one week for a protest and certain recounts to the extent that they can be done and there are four weeks for contests.

When the Florida Supreme Court truncated, when the Florida Supreme Court expanded the protest period from 7 days to 19 days, it necessarily limited the contest period to a shorter period of time.

It changed the discretion.

It allowed certain things to occur that couldn't have occurred and it justifies all of those things on the grounds that the Florida Supreme Court, the Florida Constitution trumps those legislative concerns, and that's why it said we are not going to be dissuaded by hypertechnical statutory considerations.

So the court was doing what this Court said in the McPherson vs. Blacker case that it cannot do, allow itself to insert itself or the Florida Constitution over what is required by Article II, Section 1 of the Constitution.

It also seems to me quite evident in response to what Justice Kennedy was asking earlier, that there was concern about the Federal statutory provision, the language to which I think Justice Kennedy was referring is on page 32-A of the appendix to the petition from the court's decision, and there is a footnote there that does refer to reference to 3 U.S.C. 1 through 10, which of course includes Section 5, and it says so in conjunction with the statement that the exercise of the discretion by the secretary of state could not be done in such a way that would preclude Florida voters from participating fully in the Federal electoral process.

The court was assuming, it seems to me, that it did not, was not conflict... the decision that it was rendering was not going to cause a conflict with the Federal statutory scheme, and it was, we submit, in error in that regard.

So the... the... to sum up with respect to this, the Florida Supreme Court radically changed the legislative scheme because it thought it could do so under the Florida Constitution.

By doing so, it acted inconsistently with Article II of the Constitution, and inconsistently with Section 5 of Title III, and it has brought about precisely the circumstances that Section 5 of Section 3, Title III, was designed to avoid.

Justice Ginsburg: As I look in the conclusion, the paragraph on page 37-A, where they summarize what they said, there is nothing there about the Florida Constitution.

It's only about the Florida election code.

They say they must construe the Florida election code as a whole, and they point out the provisions in conflict.

There is not one word in that paragraph that says anything about the Florida Constitution.

Mr. Olson: The very second paragraph refers to the Florida Constitution and the rights to vote.

Page 36-A of the appendix to the petition.

Chief Justice Rehnquist: Thank you, Mr. Olson.

The case is submitted.

The honorable court is now adjourned until Monday next at ten o'clock.

Attribution:

The OYEZ Project

Featured:

Employment Division v. Smith - Oral Argument

Wed, 13 Apr 2011 20:12:07 +0000

Case:

Employment Division v. Smith

Media File:

86-946_19871208-argument.mp3

Related Transcript:

86-946_19871208-argument.xml

Transcript:

ORAL ARGUMENT OF WILLIAM F. GARY, ESQ. ON BEHALF OF PETITIONERS

Chief Justice William H. Rehnquist: Mr. Gary, you may proceed whenever you're ready.

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

The Respondents in these cases were employed as drug counselors.

They were fired from their jobs because they deliberately violated their employer's rule that counselors must refrain from all use of dangerous drugs.

They applied for unemployment benefits from the Petitioner State of Oregon.

The state's employment agency disqualified them because their drug use was misconduct connected with their work.

The question presented is straightforward.

Do claimants have a constitutional right under the Free Exercise Clause to compel the state to pay them unemployment benefits solely because the criminal conduct that led to their firing, the use of peyote, was religiously motivated.

Unidentified Justice: Mr. Gary, there seems to be some dispute between you and your opponents as to whether this particular conduct was criminal under the laws of Oregon.

Mr. Gary: Yes, Mr. Chief Justice, the conduct is criminal under Oregon.

That's an issue that was presented for the first time in this Court, relying on one Court of Appeals decision, State v. Downes, which was factually quite dissimilar from this case.

It involved a heroin addict who was injected with heroin and never had any possession of the drug.

The Oregon law is very clear that possession means merely exerting control and, of course, the reason for the prohibition against possession of dangerous drugs is precisely to deter the use of the drug itself.

Unidentified Justice: Well, but, the statute prohibits possession, not use, is that right?

Mr. Gary: That's correct.

Unidentified Justice: And it is, I guess, theoretically possible that someone in a Native American church ceremony might have peyote buds administered to him rather than possessing it, is that right?

Mr. Gary: Your Honor, as I understand the practice, it would be difficult to have it administered without possessing, but, in any event, under Oregon law, the mere presence of an individual in the ceremony where the peyote is there would probably constitute sufficient possession of the drug to be criminal under Oregon law.

Mr. Smith, one of the claimants in this case, in fact, has made the argument that he needs to be exempted from the Oregon law because of his religious beliefs, because the conduct that he engaged in in this case and generally--

Unidentified Justice: Has the Oregon unemployment compensation law dealing with commission of crimes been satisfied in this case, either by the obtaining of a conviction of a felony or by the admission of it?

Mr. Gary: --No, and the Oregon Supreme Court correctly concluded that that was not the basis for disqualification of these claimants under state law.

The basis for disqualification of these claimants under state law was that they violated a policy of the employer--

Unidentified Justice: The employer's policy.

Mr. Gary: --Yes, and--

Unidentified Justice: Willful misconduct of an employer rule or requirement.

Mr. Gary: --That's correct.

Unidentified Justice: But the Oregon court went on apparently to find that the purpose of the Oregon unemployment compensation law did not include a purpose to enforce Oregon's criminal law, didn't it?

Mr. Gary: Your Honor,--

Unidentified Justice: It seems to have determined as a matter of state law that the purpose is to protect the fund and to take care of the unemployment compensation policies, not the Oregon criminal law policies.

Mr. Gary: --No.

The Supreme Court's conclusion was that it was bound by this Court's decision in Sherbert v. Verner to consider only the state's interest in the fiscal integrity of the fund.

That is not entirely clear from the opinion, but it is borne out by the--

Unidentified Justice: Well, it certainly isn't because the oregon court said, as I read its opinion, that its purpose, that the purpose of the Oregon law was to protect the fund.

Mr. Gary: --No.

The argument that was advanced in the Court of Appeals and in the Supreme Court revolved around the question of whether Sherbert v. Verner would permit the Court to look beyond the unemployment scheme itself at other interests.

Oregon's interest in controlling the use of... the conduct that is at issue here is manifested in a variety of different schemes, not only in the criminal law, but in education programs, rehabilitation programs, and also in the unemployment scheme itself.

In this case, the disqualification for job-related drug use was entirely consistent with the Employment Division's policy of disqualifying anyone who is found to engage in job-related drug use.

There is a policy that is included as an appendix to the Respondent's brief that was promulgated after this case was decided but is consistent with the practice that was in effect at this time, that demonstrates that any use of dangerous drugs in the job market, anything that is job-related, will be grounds for disqualification, and, so, I think it's clear by an examination of the briefs and taking the Court's conclusion with respect to what interest it examines in the context in which it was presented, that they were including that this Court had found them by Sherbert to look only at the fiscal interest.

Unidentified Justice: You can't derive that from the face and text of the opinion, can you?

Mr. Gary: No.

I concede that it is not entirely apparent from the face of the opinion, but I think that when you read the opinion in light of the arguments that were presented to the Court, it is clear.

It's also--

Unidentified Justice: What is... say it again.

You've lost me.

Mr. Gary: --The Oregon Court concluded that it was bound by this Court's decision in Sherbert to look only at the fiscal integrity of the fund as the state's interest, that it was prohibited to look at other compelling health and safety interests.

Unidentified Justice: So, you think that sentence, which reads

"the state's interest in denying unemployment benefits to a claimant discharged for religiously-motivated misconduct must be found in the unemployment compensation statutes, not in the criminal statutes. "

describing the use of peyote, you think that sentence is meant to be a statement of federal law rather than a statement of state law?

Mr. Gary: Yes.

Unidentified Justice: What they're saying is that under Sherbert, you have to find it within the state's--

Mr. Gary: Yes.

The Supreme Court's opinion in this case is merely a wooden application of the Sherbert rule, and they make a wrong step because they missed the threshold inquiry in Sherbert.

Sherbert proceeds from the assumption that the state has no interest in regulating the underlying conduct.

Because the state has no interest in regulating the underlying conduct in Sherbert, the state had no interest in regulating Mrs. Sherbert's Sunday worship, then the only interest that the Court... the state could assert was an interest other than interest in regulating that conduct.

Sherbert stands for the proposition that the state cannot burden a protected religious practice indirectly when it cannot burden it directly.

The vital distinction in this case between this case and Sherbert and Thomas and Hobbie is that here the state does have a vital health and safety interest in regulating the conduct that these claimants engaged in.

It has acted on that health and safety interest by making the conduct criminal.

If the conduct is criminal, the state cannot be required to provide benefits to these claimants because the claimants had no right to engage in the conduct in the first place.

Unidentified Justice: --Unless it's unconstitutional to render it criminal.

Mr. Gary: Precisely.

And it is not unconstitutional to render it criminal because of the nature of the state's health and safety interest.

Oregon, like all states, has determined that there is a compelling need to deal with the problems of drug abuse and no one in this Court disputes that.

The compelling nature of the state's interest in regulating drug use is conceded by the claimants.

They also concede that that compelling interest is furthered by the criminal prohibition.

Peyote is a Schedule 1 drug in Oregon.

It is... that means that it has determined that there is no safe use for it.

It cannot be used safely even under the care of a physician and that there is a great susceptibility to drug abuse.

Now, once we have borne the burden of demonstrating our compelling interest, the responsibility then is to demonstrate that that compelling interest would be undermined by granting an exemption to the criminal law in order to accommodate the religious practice at issue here.

In order to accommodate the religious practice would undermine the state's compelling interest in at least four different ways.

First, peyote is dangerous to the user and to those who come in contact with the user.

That's the very reason why the state has criminalized it in the first place.

It is also dangerous to the community which must xx its presence within it.

Peyote produces an hallucinogenic state similar to that produced by LSD.

All fifty states and the Federal Government categorize peyote has dangerous.

The dangers posed by peyote are indifferent to the motivations of the user, and the state is and should be no less concerned about the dangers posed to a religious user than to the dangers posed by the drug... by one who uses it for xx purposes or for personal enlightenment.

Once peyote is made lawful for some purposes, as these claimants contend they have a right to require the state to do, then the problem of controlling drug trafficking is significantly compounded.

Peyote only grows in the Southwestern United States, primarily Texas and in parts of Mexico.

It would be difficult to distinguish meaningfully between traffic for lawful purposes and traffic for unlawful purposes.

The simple fact is that once some people have a right to possess peyote, there is an increased risk the drug will fall into the hands of those who do not have that right.

There is a risk that others will commit crimes against persons who posses peyote lawfully in order to obtain it from them.

These claimants, like eighty-nine percent of the Native American population in Oregon, reside in urban areas, and that merely compounds the risk that the presence of the drug in the community will mean that it will fall into the hands of persons who cannot possess it--

The record in this case includes an affidavit from Stanley Smart, who is a road chief, who conducts the peyote ceremony.

He indicates that it is not uncommon for him to conduct as many as four peyote ceremonies a week.

That means that at any given time, Mr. Smart is in the possession of a large amount of peyote, and he makes himself thereby a target for those who would mean to obtain the drug from him for unlawful uses.

Moreover, to accommodate the religious drug use and to treat all religious beliefs--

Unidentified Justice: You can say the same thing about hospitals that have cocaine, I suppose.

Right?

I mean,--

Mr. Gary: --In Oregon, Your Honor, hospitals would not have cocaine because it's a Schedule 1 drug.

Unidentified Justice: --Well, pick some other narcotic that is generally illegal for traffic but is allowed to be used for some purposes.

Mr. Gary: Yes.

That's correct.

Unidentified Justice: Laudanum or whatever you want.

Mr. Gary: That's correct, and that problem is addressed because there is a conclusion that there are some safe uses for the drug and that it serves a purpose.

Unidentified Justice: Well, the purpose alleged here is a religious one.

Mr. Gary: That's correct.

But the religious use is the same use that the state has concluded is dangerous and I think demonstrably dangerous because of the nature of the hallucinogenic state that it produces, and the record in this case reflects that the purpose of the religious practice is to induce that hallucinogenic state.

And, so, the danger that everyone concedes the state has a compelling interest to address is directly implicated by the practice at issue here.

Unidentified Justice: Well, Mr. Gary, I'm still concerned because I'm not sure we even get to that question, unless we get over the initial hurdle that I asked you about.

And if I can return to that a minute, are you asking us to hold as a matter of federal law that Oregon must exercise its police powers through its unemployment compensation scheme?

Mr. Gary: No, Your Honor.

I am asking you to hold as a matter of federal law two things.

First, that where the state has a regulatory interest in the conduct that underlies the disqualification for unemployment benefits, it is appropriate for the Court to consider that interest in determining whether the disqualification is an impermissible burden on free exercise.

Unidentified Justice: Even when the Oregon Court, as a matter of state law, perhaps has refused to do it?

Mr. Gary: Well, if they refuse to do it as a matter of state law, then my burden is much heavier to carry.

My point is that they did not and at a minimum--

Unidentified Justice: But we don't know that for sure.

We don't know that.

Mr. Gary: --No.

I suspect that the record in this case, when you review it, will confirm my assertion that the determination by the Supreme Court of Oregon was a determination that they felt bound to make by virtue of this Court's prior decisions.

If you reach that conclusion, then, at a minimum, this case must be sent back to the Court for them to consider the application of our health and safety interest in the context of the regulatory scheme at issue.

But you don't even need to get to that point because our threshold point is that the criminal law of Oregon is relevant to the determination in a federal constitutional sense that the Supreme Court of Oregon simply swept under the rug, and that is our first argument, that because the conduct is prohibited as a matter of criminal law, assuming that that criminal prohibition is constitutional and we contend that it is, then these claimants had no free exercise right to engage in the conduct and Sherbert simply doesn't apply because Sherbert only controls when the state has no interest that it has acted upon in regulating the conduct itself.

When the state has regulated the conduct itself and, as in this case, has outright prohibited it, Sherbert doesn't apply.

You don't even get past that threshold holding by Justice Brennan in his opinion that you enter into the analysis that requires the state to prove a compelling state interest from withholding the benefits only because the state has no interest in regulating the conduct.

Unidentified Justice: Then, it seems to me you're suggesting that really the critical issue in the case that has to be decided is whether the conduct of using peyote in a Native American religious ceremony is constitutionally protected or not.

I think it's critical to your case that there is no constitutional protection for this use of peyote.

Mr. Gary: Yes.

It is critical to our case that there is no constitutional protection.

It is not absolutely necessary for the Court to decide that Oregon can criminalize the conduct because we think that the Court can and should evaluate the state's regulatory interest in the context of the question of whether benefits may be denied.

Unidentified Justice: You say if there really is no free exercise right out there, then we don't even reach the problems of Sherbert and those cases, is that right?

Mr. Gary: That's precisely correct.

And because of that--

Unidentified Justice: And do you read the Oregon Supreme Court's opinion as resting perhaps by implication on the proposition that the religious use of peyote cannot be punished or burdened by the state because of the federal free exercise clause?

Mr. Gary: --No, I don't.

I don't think the Supreme Court even considered that question, although it was advanced before them, and the reason that the Court's opinion should not be read to hold that Oregon cannot punish the conduct criminally is because it would require the Supreme Court to overrule a prior Court of Appeals decision in Oregon State v. Soto, which held precisely the opposite.

The only law in Oregon, judicial decision in Oregon, says that there is no constitutional right to an exemption from the application of the criminal law for religious use of peyote.

Unidentified Justice: So, the Supreme Court of Oregon rested its decision on the federal free exercise clause, but not on the ground that you could not criminalize peyote?

Mr. Gary: That's correct.

In essence, what the Oregon Supreme Court did was leap-frog over that threshold inquiry and then enter into a balancing test which was hopelessly infected by a misreading of this Court's decision in Sherbert.

Even then, they only considered the regulatory... I mean, the financial interests and they did not consider our regulatory interests.

Unidentified Justice: Specifically, you think they read Sherbert xx requiring that whatever state interest exists in order to overcome the claim for an exemption or an unwritten exemption, whatever state interest exists must be reflected in the compensation statutes themselves?

Mr. Gary: That's correct.

Unidentified Justice: Rather than just in some criminal law?

Mr. Gary: Yes, Your Honor.

I think that's the way they read Sherbert, and in order for them to read that, Sherbert, that way, they mistook this Court's conclusion in Sherbert reiterated in Thomas and Hobbie, that the state had no interest in regulating the conduct as a holding that the state's interest in regulating the conduct was irrelevant to the inquiry.

That was the constitutional mistake that the Oregon Supreme Court made.

Now,--

Unidentified Justice: Well, suppose there hadn't been any First Amendment issue at all, did the Oregon Supreme Court indicate that benefits should have in any event been granted in this case because the legality of the conduct was just irrelevant?

Mr. Gary: --No, Your Honor.

The Court specifically held that the benefits would be denied as a matter of state law, and if I could, I'd like to walk you through the Court's decision.

Unidentified Justice: And that was in the part of the opinion that dealt with Oregon law?

Mr. Gary: That's correct.

Unidentified Justice: The first part of the opinion?

Mr. Gary: That's correct.

Unidentified Justice: So that the second part of the opinion where the Court says that the unemployment benefit, the Board, the Division concedes that the commission of an illegal act does not in itself disqualify, if that were true, why, you would think that they wouldn't have needed to get to any federal issue.

Mr. Gary: Yes.

I think you're right, and that's why it's a little astonishing that the Court takes our concession in the part of our brief where we are talking about the state law issue of whether these people are disqualified and then translates that into our... the part of our brief that dealt with the impact of the criminal prohibition on the federal constitutional issue, and it's a little bit baffling, but it's very clear from our briefs that have consistently argued that the criminal conduct was not the basis for the disqualification under Oregon law, but that the fact that the conduct is criminal is vital to the Court's assessment of the free exercise clause.

Unidentified Justice: Because they did in the end rest their judgment on the free exercise clause, did they not?

Mr. Gary: Yes.

What the Court did was begin as the Oregon Court always does by looking at its own statutes, included that under Oregon law, because these claimants engaged in job-related drug use, that actively undermined their employer's interests, which in this case happens to coincide with the state's interests, that constituted misconduct in connection with the work and like anyone who engages in job-related drug use, these claimants are disqualified under state law.

They then turn to the Oregon Constitution and concluded that the Oregon religion clauses did not compel the state to provide benefits in any event and they turned specifically then to this Court's decision in Sherbert v. Verner and that's where they made the wrong turn.

Unidentified Justice: Well, they said that aside from any federal law, this claimant would have lost, should have lost under state law.

Mr. Gary: Correct.

Unidentified Justice: But only because... not because the conduct was criminal, but because it was wholly incompatible with the employer's business.

Right?

That's the way you put it a minute ago.

Mr. Gary: Yes.

The interest that the Supreme Court was applying is the interest that the state has in deterring job-related drug use and there are a wide variety of reasons.

Unidentified Justice: Well, let me put it another way.

Suppose that in... when the Court was dealing with Oregon law, it had been found that what the employee did was not incompatible with her job or his job, then the claimant would not have been disqualified just because the conduct was criminal.

Right?

Mr. Gary: That's correct.

In Oregon, one is disqualified only for job-related drug use and there's a very good reason for that.

The Federal Unemployment Tax Act requires that in order for states to have qualified programs, they can only disqualify persons for job-related misconduct.

Therefore, it is completely irrelevant under the Federal Unemployment Tax Act and in order for Oregon to have a qualified program, we cannot disqualify persons for off-the-job drug use.

But it is, nevertheless, very clear that if you're going to apply the state's regulatory interest in the context of the unemployment scheme, it plays out in exactly the same way as when you look at the state's regulatory interest and consider whether these claimants are entitled to an exemption from the criminal law.

The criminal prohibition is just one important application of the State of Oregon's public policy to curb drug abuse.

As I said earlier, the same policy is furthered and reflected in other programs and is reflected in the unemployment compensation scheme.

For example, a policy memorandum dealing with employer drug testing that is attached to the Respondent's xx states,

"If an employee is discharged for failing a drug test and it is demonstrated that the employee's job performance xx impaired by drugs, it is a discharge for misconduct. "

The Federal Unemployment Tax Act limits our disqualification only to job-related misconduct, but under Oregon law, all job-related drug use is disqualified.

All of the health and safety concerns that drive our criminal prohibition are further served by a disqualification for misconduct connected with the work.

Job-related... and, really, the Respondents in this case can't contest that because the very heart of their claim is that the disqualification, burdens, their practice of drug case and since our purpose is to burden their practice of drug use, demonstrates that the unemployment compensation scheme serves that purpose, and the same reasons that we cannot give an exemption to their use from the criminal law would apply in analyzing whether they should be exempted from the disqualification from the unemployment law.

In fact, when drug use spills into the work place, the hazards of that use are even greater.

In this case, we were talking about drug counselors who, to serve the interests of their clients by acting as role models, that suggested that perhaps if you use drugs responsibly, you could continue to use drugs, but it might just as well have been someone manufacturing automobiles or flying airplanes.

Drug use in the work place is a very serious concern.

It's real, immediate and compelling, and the same reasons that we can't grant the exemption would apply in the context of the unemployment scheme itself.

Unidentified Justice: Well, suppose this employee had worked for Harry and David and just used peyote in a religious ceremony and was fired because of that and the employee applied for unemployment compensation, he would have gotten that.

Mr. Gary: If the conduct was not job-related, they would get unemployment benefits, but the reason for that, Your Honor, is because, as I indicated, Federal Unemployment Tax Act limits our inquiry to job-related conduct.

Unidentified Justice: All right.

But if the unemployment board, nevertheless, denied compensation, it would have been reversed in the Supreme Court?

Mr. Gary: Sherbert v. Verner.

It would have been under state law.

You're right.

Unidentified Justice: Under state law.

Mr. Gary: It would have been as a matter of state law because the misconduct must be job-related in order for anyone to be disqualified.

Unidentified Justice: Well, isn't that essentially what happened in the... here in this case, when the Court was talking about Oregon law?

The only reason that compensation was denied was because the conduct was job-related.

Mr. Gary: Yes.

And the Oregon Supreme Court specifically so found.

Unidentified Justice: And the fact it was criminal had nothing we do with it.

Mr. Gary: Yes, but even the rule that is cited in the Respondent's brief relating to disqualification--

Unidentified Justice: Well, how can you really argue that although criminal conduct is not enough to deny compensation for, it, nevertheless, can be relied on to overcome a free exercise claim?

Mr. Gary: --For two reasons.

First, because if the conduct is criminal, the claimants have no right to engage in the conduct and, therefore, they can't assert a free exercise claim.

Second, because the state has a regulatory interest that must be folded into the calculation, even if you look at whether these people should have a constitutional exemption from the application of the state law-based disqualification.

Unidentified Justice: I'm not sure I understand why that's a second reason.

Isn't the regulatory interest the same as the interest in enforcing the criminal law?

Mr. Gary: Yes, Your Honor.

It's the same interest.

The analysis is just slightly different depending on whether you stop the analysis at the beginning or go into the second--

Unidentified Justice: If you had a statutory exemption from the prohibition on drug use for this particular... for religious use of peyote, then it seems to me one could argue that the conduct was constitutionally protected and the regulatory interest would fall by the way side.

If there were an exemption from the state criminal law.

Mr. Gary: --If there were an exemption from the state criminal law, then I think you're correct.

Oregon, by the way, as a matter of constitutional law, I think, is foreclosed from granting that kind of an exemption from its criminal law, unless it is compelled by the free exercise clause.

I'll reserve the balance of my time.

Thank you.

Chief Justice William H. Rehnquist: Thank you, Mr. Gary.

We'll hear now from you, Ms. Lovendahl.

ORAL ARGUMENT OF SUANNE LOVENDAHL, ESQ ON BEHALF OF THE RESPONDENT

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

Essentially, the Attorney General is arguing that it disagrees with the decision of state law on a state law issue, which has been our position essentially all along.

If you remove the alleged criminality of the Respondent's conduct, these cases are no different from the situations presented by the patterns in Sherbert, Thomas and Hobbie.

Unidentified Justice: Ms. Lovendahl, you say that's been your position all along.

Your brief in opposition to the Petition for Certiorari doesn't mention at all that this case was decided on the ground of state law, and I would have thought that if that language is to be read the way you assert, now assert it is to be read, you would have said that.

Mr. Lovendahl: Well, in my brief in opposition, I said that the state law correctly applied to principles in the context of the state... the state court applied them in the context of the state law.

Unidentified Justice: You had two points.

Reason for denying the writ: (1) the federal question raised by Petitioner has been clearly settled, (2) the decision of the Oregon Supreme Court is consistent with applicable decisions of this Court.

One would have expected (3) this case presents nothing but a question of state law.

Mr. Lovendahl: Well,--

Unidentified Justice: It's just not there.

Mr. Lovendahl: --I was responding to the way that they had done their issues, but within that response was the assumption that that was a state law issue.

Unidentified Justice: Well, I would have thought that the reason they did their issues that way is that the sentence you're relying upon, to wit the state's interest in denying employment benefits must be found in the unemployment compensation statutes, that is two sentences away from the lead sentence of the paragraph, which reads:

"Nor is the state's interest in this case any more over-riding or compelling interest than in Sherbert and Thomas. "

and I read that... the later sentence as the state did here, to be referring to what is necessary for the state's interest to be considered over-riding under Sherbert and Thomas, and the Court is saying in order to be so, it has to be found in the unemployment compensation statutes, and it seems to me that this whole case has been argued all the way through right up to here on that assumption, and all of a sudden, in your reply brief, we find that this case has just been decided under state law.

Had we known that, we wouldn't have granted cert in the case.

Mr. Lovendahl: The decision, though, that the interest had to be found on the state unemployment compensation statutes was a decision, they were interpreting the state law.

Unidentified Justice: Yes, but the... I thought your argument was that given that interpretation of state law, there's just no really substantial federal question because it's so clear that Sherbert governs it.

Mr. Lovendahl: Correct.

Unidentified Justice: But that's still a federal... that still leaves the decision below resting on the federal ground.

Mr. Lovendahl: It rests on a federal ground in that it was controlled by Sherbert and Thomas.

Hobbie had not been decided.

Unidentified Justice: So, you really don't say that the case went off on a state ground?

Mr. Lovendahl: No.

I mean that there's not a federal distinction between this case and Sherbert, Thomas and Hobbie.

Unidentified Justice: Yes, yes.

Mr. Lovendahl: Rather than it was not decided--

Unidentified Justice: Given that interpretation of the state law, the federal issue is perfectly clear.

Mr. Lovendahl: --Exactly.

Those cases are controlling.

If you accept the Attorney General Office's argument here, the effect ultimately is to present, actually present establishment law problem.

They say that there is an establishment law problem and I say that if these cases are reversed, you're presenting an establishment law problem because no other person who was in this situation would have been denied benefits on the grounds of illegality.

So, they are really trying to get the Court to consider illegality in the context that no other person would be penalized on that specific basis.

Unidentified Justice: Well, I guess they say they would have been denied benefits on the grounds of employee misconduct.

Mr. Lovendahl: Right.

There is a work connection here, but it was the same situation as Sherbert, Thomas and Hobbie.

There was a work connection in all of those cases.

The test isn't whether the person's getting a special benefit because of their religion, but are they being differently than other people who are forced... they are being forced to choose between their religion and their job.

Are they being treated differently from other individuals in the state who are involuntarily unemployed and eligible for that benefit program.

In Sherbert and Thomas and Hobbie, the people were refusing to do work and nobody else who had been in that situation, nobody who refused to do their job all together would have gotten benefits.

Nobody who refused to work on Sunday would have gotten benefits, but other religions were not put to that choice.

In this case, though, if you do compare fact for fact, in fact, it is not true, as the Attorney General's Office represents, that all job-related drug use is disqualified.

I cited two cases in my brief that are acknowledgement of the recognition that alcoholism and drug use are considered... this was an employer who was a rehabilitation employer and it was their philosophy that any use of drugs or alcohol by a recovering person was an illness.

So, in this situation, if the people were drug and alcohol counselors, if they used drugs off duty and it was a product of a drug addiction or if they used wine in a church ceremony, that would be considered relapse, and as long as the individuals were able to work and do other jobs, they would, in fact, be eligible for benefits.

So, these people would really be disadvantaged by applying a test requested by the Attorney General's Office rather than the reverse in this case.

The most disturbing suggestion that the state makes in this case is that they can extinguish a free exercise guarantee simply by labeling conduct as criminal.

I think it's been obvious for quite some time that the established test is that under the Constitution you have a right--

Unidentified Justice: May I ask you right there on that question, of course, it's more than labelling it, I suppose they do have a statute that makes it a crime to use certain drugs.

Is it your position that it's constitutionally impermissible to prohibit the religious use of peyote?

Mr. Lovendahl: --Well, I think that that balancing test has to be applied.

You can't ignore the balancing test.

Unidentified Justice: But if you apply the balancing test, do you end up with... in order to prevail, is it not correct that you must submit that your clients had a constitutional right to make... to use peyote in their religious ceremonies, that the state could not interfere with that right?

Mr. Lovendahl: Well, our position is that if you xx to look at the statute at issue that's imposing the burden.

In the unemployment context scheme, there was... the legality of the contact was really irrelevant.

So, it wasn't xx that was decided before.

Unidentified Justice: Well, it's relevant if you say that the state may enforce a neutral law that prohibits all drug use xx that that is religiously motivated.

Then, the law is relevant to the ultimate question of whether you have... your clients had a constitutional right to engage in this conduct.

Mr. Lovendahl: Right.

It's a very circular type of situation that we're in and that is presented by the state in this case, but the fact is that under the Constitution, you have a free exercise right and it can only be overcome if the state can show a compelling interest.

Now, in each individual fact situation, the fact is that under the unemployment statutes, this person is put to the same choice as the person who is under their religion.

They have to choose between the job requirement and adhering to their faith.

In a criminal situation,--

Unidentified Justice: Yes, but the difference that I don't think you're really confronting is the fact that there's really no dispute that in the Sherbert and Hobbie and Thomas cases, the conduct that was... that caused the discharge was conduct that they had a constitutional right to engage in.

There's an issue, however, in this case as to whether your clients had a constitutional right to engage in the conduct that led to their discharge.

Mr. Lovendahl: --Yes, and in--

Unidentified Justice: And don't you have to convince us that they did have a constitutional right in order to prevail?

Mr. Lovendahl: --No, I don't think we do, because I feel that that's the problem with their argument, is that they can't boot strap another statute.

The fact is that he has a free exercise right--

Unidentified Justice: If you don't have such a federally protected right, I don't see that there's even a federal question in the case.

Mr. Lovendahl: --Well, there would be if that issue could be decided, but under the state unemployment statute, the interest to be served by that statute is to protect involuntarily unemployed workers, and I think the question in this case really is would that interest be thwarted by giving unemployment benefits--

Unidentified Justice: Yes, but the Court ruled that under Oregon law, there was... these benefits were properly denied, and the claim then was, well, yes, but the first... the free exercise clause forbids you to deny benefits in this case, even though to every other employee that engaged in misconduct, benefits would be denied.

So, you have to get around, it seems to me, to saying that there is a free exercise clause right to engage in criminal conduct.

Mr. Lovendahl: --Well, the fact is that other people who want to argue this--

Unidentified Justice: Well, let me just ask you, do you think there is a free exercise clause right to engage in criminal conduct?

Mr. Lovendahl: --Well, it's our position that this particular religious practice is protected, and we've argued that in our brief.

Unidentified Justice: Well, I think you have to convince us of that.

Have you got any cases like that, that say that there's a free exercise clause right to engage in... to use drugs?

Mr. Lovendahl: Well, not to use drugs, but in terms of whether the conduct is criminal or not, in Wisconsin v. Yoder, the Court made clear that you still have to go through the entire balancing test.

Obviously, where conduct is made criminal, the most extreme burden that you could have and the state has an obligation to show--

Unidentified Justice: I read the Oregon Supreme Court's opinion as reciting without any criticism the fact that the Oregon Court of Appeals had held that religious use of peyote are not exempt from criminal sanctions in Oregon.

I'm just reading the footnote.

Mr. Lovendahl: --Right.

Unidentified Justice: And they don't seem to take any exception.

The State v. Soto.

Mr. Lovendahl: Well, because that wasn't the issue before them and that was why they didn't address it.

That was one of the things that--

Unidentified Justice: But is it part of your submission here that this wasn't criminal conduct under Oregon law at all?

I don't see... I don't know whether--

Mr. Lovendahl: --Well, our position is that there would be no distinction between this case at all, if the conduct... if it was clear that this conduct was constitutionally protected.

That's an issue that's never clearly been decided and since, in this case, the unemployment compensation statutes are the statute being applied,--

Unidentified Justice: --I understand that argument, but are you asking us to affirm on another ground, namely that this conduct wasn't criminal under Oregon law anyway?

Mr. Lovendahl: --Well, we don't really feel that that's an issue that has to be decided in this case.

Unidentified Justice: All right.

Then, you aren't asking us.

Mr. Lovendahl: No.

Unidentified Justice: All right.

The Attorney General... the Solicitor General says that it was a policy established by regulation of the Employment Division that drug-related... that job-related drug use would be automatically disqualified.

You don't quarrel with that proposition, do you?

Mr. Lovendahl: Job-related drug use?

That's correct.

Unidentified Justice: Yes.

And, so, why do you say then that this policy or whatever was not found in the unemployment compensation statute?

Mr. Lovendahl: Well, let me correct myself to your last question, though.

Job-related drug use would be protected if it was a product of an illness.

In other words, not willful, which I think is the same situation when you're talking about a religious impulse, and, so, that's why we feel that they're in the same position in Sherbert, Thomas and Hobbie.

Unidentified Justice: That they didn't smoke the stuff or whatever you do with it voluntarily?

Mr. Lovendahl: It was in response to a dictate of their religion.

I think that that's the idea behind Sherbert, Thomas and Hobbie, is that you're responding to an authority higher than your employer, but not--

Unidentified Justice: Yes, but in Sherbert and Thomas, there was no question but what the conduct engaged in was perfectly lawful.

Mr. Lovendahl: --That's correct, and that's the question in this case, is does that have an effect or not, and our position is that you look to the state law and if, under the state law, that's not an interest to be served by that particular legislation, then it has no bearing.

Unidentified Justice: Is that a question of federal law or state law whether you look to the state law?

I guess you're coming back to that sentence, and I hate to be dense, but I still don't understand what you're asserting that the sentence means.

I think you're saying that the Court was saying that the state's interest... that for purposes of Sherbert and Thomas, as a matter of state law, the state's interest apart from the interest found in the unemployment compensation statute is irrelevant.

Right?

For purposes of Sherbert and Thomas, as a matter of state law, any interest not in the unemployment compensation statute is irrelevant.

Is that a question of state law?

Mr. Lovendahl: Yeah.

Unidentified Justice: Can you say as a matter of state law, it's irrelevant for Sherbert and Thomas or is that a question of federal law?

Mr. Lovendahl: Well, what they did was they were deciding how to consider the legality and decided that it was irrelevant and then went on and did their balancing, but under state law, it wasn't anything that could be considered because the legality wasn't relevant, and--

Unidentified Justice: What do you mean under state law?

But he's not discussing state law.

He's discussing Sherbert and Thomas.

Mr. Lovendahl: --My reading of that portion of the opinion was that they looked to the legality before they did the balancing test to see whether it should be considered or not.

I think that they rejected the Attorney General's argument because the purpose of the unemployment statute was not to enforce the state criminal code.

Admittedly, that's a statute that imposes a burden, but the unemployment compensation, the burden imposed by that statute, was what the Court was trying to determine.

Unidentified Justice: Determine the state law issue and it was conceded that it was a violation under state law.

What was contended for was a requisite exception under federal law, under Sherbert and Thomas.

Mr. Lovendahl: The state law portion of it was that they interpreted their Constitution more restrictively than the federal Constitution has determined.

Under the way that they interpreted the Oregon Constitution, Sherbert, Thomas and Hobbie would not have gotten benefits.

There has been one case applying these cases since then involving a Jehovah's Witness and they reached the same result, that they were not entitled to benefits under the state Constitution, but they were entitled to them under the federal Constitution.

So, that's not the state law decision that we're interested in.

We're concerned about how you consider criminality under the unemployment statute.

It was a separate determination that they had made.

In Wisconsin v. Yoder, the Court stated that only those interests of the highest order and those not otherwise served can over-balance claims to the free exercise of religion, and in this case, the state has a set of statutes designed to serve its interests in law enforcement and the state legislature made it clear that the unemployment compensation statute is not to serve that purpose.

There might be some instances where that's not the case, but accepting their theory in this situation, the fact is that the individuals would not... would be discriminated against rather than favored.

The Division does pay benefits to people who engage in criminal law, and the only difference here is that the people are work-connected.

They're claiming that they're getting a special protection under the free exercise clause that they wouldn't have gotten but for their religion, but the fact is that the reason we have a free exercise law is to balance the rights that the majority has through legislation.

If this was a majority religion in this country, this practice would never be illegal, and that's where that balance comes in, and why it's important to protect this type of conduct.

We do feel, though, that if the state is obligated somehow under the federal Constitution to consider the status of the criminal statutes, that, first, it is extremely unclear that Mr. Smith and Mr. Black could have been charged with any crime.

They admitted that they used peyote in the ceremony.

Use itself is not illegal.

They never admitted that they possessed it or exercised dominion and control over it.

From the Native American Church amicus brief, it is clear that it's the road man who exercises dominion and control and that the people who attend the ceremony have no more control than an individual who's at a christian ceremony when wine is used.

It is essentially the same situation.

Unidentified Justice: Well, is it necessary for the state's case in order to refute the necessity... the constitutional necessity for an exception to their unemployment scheme, is it necessary for them to show that this particular conduct would have been unconstitutional or isn't it enough to show that there is a general state policy against the use of drugs?

I mean, the policy against the possession of it is obviously directed to prevent the use of it, and wouldn't it be enough just to show a general policy whether the state showed that this particular individual was criminally in violation or not?

Mr. Lovendahl: Well, in Wisconsin v. Yoder, this Court found that the interest should be weighed where the state's interest in enforcing that law against this particular religious group.

Otherwise, the state's interest would always outweigh the interest of the division.

Unidentified Justice: I'm not quarreling about the weighing argument.

I'm quarreling about your assertion that there's nothing to weigh because this individual had not violated the criminal law.

You're trying to preclude the weighing.

Mr. Lovendahl: Right.

That would make it a different case if the Court could find that, and that is our position, that they didn't engage in criminal conduct and they couldn't be charged.

The Attorney General's Office disputes that.

That was never an issue that was ruled on by the Court.

Unidentified Justice: I'm saying I don't see how that's relevant.

It clearly is a state policy, expressed in its criminal laws, against the use of peyote.

Mr. Lovendahl: Right.

Unidentified Justice: Against the possession.

The criminal law addresses possession, but the objective of it is to prevent the use, isn't that so?

Mr. Lovendahl: Right.

But if these people are exercising their free religious exercise right, it's not illegal under federal law, their particular conduct, I don't see how the state can consistently with the Constitution impose a penalty against them on the basis of their activity as, in fact, illegal.

It's not... it's sort of a false issue, you know, I agree, but in terms of whether the church practice itself is exempted, the Federal Government and every state that has considered this particular issue has found this to be a safe practice.

In the Attorney General's reply brief, they conceded that this particular church has a long history of safe use.

The lack of enforcement of the statutes against Native America Church members--

Unidentified Justice: Even so, I take it that the Oregon Supreme Court essentially held that whether the conduct is criminal is irrelevant to determining the free exercise clause, and I guess that that's your submission, too.

Mr. Lovendahl: --Right.

Unidentified Justice: And if we disagree with you, I would think we could disagree with the Oregon Supreme Court's conclusion that it is irrelevant and send it back.

They may end up saying that, well, it's... so it's relevant, but in this case, there's no criminal conduct.

Mr. Lovendahl: Right.

The problem, of course, is that it's not a decision that the Court could determine... could really consider under its opinion of the law in the context of an unemployment proceeding since it decided that it was irrelevant, and I do feel that that was the state court's decision.

The Attorney General's Office did present the argument that it was... there was no protected constitutional right and they did reject it.

In the course of rejecting it, they... both the Court of Appeals and the Oregon Supreme Court referred to the ambiguity about whether there was, in fact, some constitutional protection and suggested that their state decision in Soto v. State would be overruled if it came before them again.

They noted that it appeared to be a relic of a prior time.

It was based on a statute that was repealed as well.

Unidentified Justice: May I ask another question?

Has the Oregon Supreme Court ever addressed the question of whether this conduct is protected under the Oregon Constitution?

Mr. Lovendahl: The Native American Church practice conduct?

Unidentified Justice: Yes.

The use of peyote in their religious ceremony.

Has that ever come up, do you know?

Mr. Lovendahl: Well, in the Soto case, I believe that was disposed of under the federal Constitution.

What they basically decided was that it was a positive legislative enactment and didn't go into any kind of balancing test at all.

An individual who is--

Unidentified Justice: You have to help me a little more.

The Soto case held what?

Mr. Lovendahl: --That the individual could not even raise the defense.

Unidentified Justice: The what?

Mr. Lovendahl: The individual who was charged with the possession could not even raise the religious freedom defense.

So, in the dissent, they--

Unidentified Justice: They implicitly held that it was not constitutionally protected.

Mr. Lovendahl: --Right.

That there was no protection whatsoever.

Well, the person couldn't even raise the defense.

They didn't get to the balancing test.

Unidentified Justice: But the reason they couldn't... was it a procedural reason or because there's no constitutional protection for the use of peyote?

Mr. Lovendahl: They just considered that the fact that it was made criminal under state law was sufficient to over-ride the individual's claim.

Unidentified Justice: As regard to state law.

Mr. Lovendahl: Yeah, and there was a strongly worded dissent in that case, essentially to the effect that the Court was abdicating its responsibility as final arbiter of constitutional rights.

In any event, in terms of the constitutionality of the practice, the state has a history of lack of enforcement, So, it doesn't appear that they have an overwhelming interest in over-riding or disposing of this particular church practice, and the only concern that they have is that flood gates will essentially be opened.

This isn't a situation, though, where many other churches meet the test of safety that the history of the Native American Church has demonstrated.

This is an ancient religion that's been going on before the practice was made criminal.

The classic kind of situation that was presented in Wisconsin v. Yoder, with the Amish.

Their practices were not illegal before enactment of the state criminal code.

In fact, this church practice serves the purpose that the criminal law statutes were intended to serve.

It's actually a treatment program for individuals who have had difficulty with problems of alcoholism and a number of alcohol rehabilitation treatment centers use peyote in Native American Church ceremonies as a way of helping Native Americans.

It's an extremely important cultural-specific treatment plan that would actually compromise the interest of the state in helping people overcome, particularly Native Americans to overcome, the problems of drug addiction and substance abuse.

The reasons that the state has given are purely speculative and, in essence, they have admitted that they do not have a strong interest in terminating this particular religious practice.

There have been a number of state court xx that have had the benefit of the full evidentiary record on this particular issue, and they have made it clear that this is something that should be constitutionally protected.

The effect of a decision finding the criminality of these individuals' conduct to distinguish this case from Sherbert, Thomas and Hobbie by implication suggests that there is no constitutional protection here, and I submit that that would indicate a discrimination against this religious practice that would effectively cast a shadow over this entire church.

I don't see any reason why these people, this situation presented here is different from a situation in Sherbert, Thomas and Hobbie, and I feel that the same results should obtain.

Thank you.

Chief Justice William H. Rehnquist: Thank you, Ms. Lovendahl.

Mr. Gary, you have one minute remaining.

ORAL ARGUMENT OF WILLIAM F. GARY, ESQ. ON BEHALF OF PETITIONERS -- REBUTTAL

Mr. Gary: Thank you.

Quickly to answer your question, Justice Stevens, the Oregon Supreme Court held in this case that a denial of benefits did not violate the Oregon Constitution.

They have not specifically addressed the question that you asked under the Oregon Constitution, but in Oregon, it is very clear under their other decisions that that would violate what is our equivalent of the establishment clause because, to borrow a phrase from Justice Scalia, in Oregon, a pinkie on the scale is as bad as a thumb and that would favor the religious practice, unless it is required by the free exercise clause.

Claimants do not get unemployment benefits under state law.

That's settled.

These claimants cannot prevail unless you conclude that they had a right to engage in the conduct that they engaged in.

If the conduct is criminal, they had no right to engage in the conduct.

This Court has never held that a state must accommodate prohibited conduct.

Therefore, the criminal law issue must be addressed as a matter of federal law in order for the claimants to prevail, and at a minimum, this case must be sent back to the Oregon Supreme Court with instructions to do so.

Thank you.

Chief Justice William H. Rehnquist: Thank you, Mr. Gary.

The case is submitted,--

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The OYEZ Project

Featured:

Virginia v. American Booksellers Assn. - Oral Argument

Wed, 13 Apr 2011 20:09:34 +0000

Case:

Virginia v. American Booksellers Assn.

Media File:

86-1034_19871104-argument.mp3

Related Transcript:

86-1034_19871104-argument.xml

Transcript:

ORAL ARGUMENT OF RICHARD BAIN SMITH, ESQUIRE ON BEHALF OF THE APPELLANT

Chief Justice William H. Rehnquist: We will hear argument first this morning in No. 86-1034, Virginia v. American Booksellers Association.

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

Richard Bain Smith: Mr. Chief Justice, members of the Court, may it please the Court, we are here this morning on a case involving a 1985 amendment to a Virginia statute shielding the exposure of juveniles to certain sexually explicit material by regulating the manner of its display, and despite outward appearances, frankly, from reading both sides' briefs, I would suggest to this Court that the issue in this case is really very simple, because we really have one issue, and the issue turns on the type of material that this amendment affects.

Now, from the start of this litigation, from literally the first page of the transcript, the plaintiffs in this case have painted a picture of a statute with a very broad range effect, a range of material involving material with great beauty and great literary value, a range of material that they include James Joyce's Ulysses, William Faulkner's Sanctuary, and even the Penguine Book of Love Poetry, which is an anthology of all the great poems of the English language from Robert Browning to Alfred Lord Tennyson.

If that range is correct, if they are correct that this amendment involves that material, then we lose the case, and I submit to the Court that we should lose the case, because the Commonwealth of Virginia does not desire to restrict in any way, directly or indirectly, that type of material.

But by the same token, if the material affected is not this broad range, then I would submit to the Court that the plaintiffs cannot prevail, because every burden that they speculate about, every terrible effect that they speculate about, all of their evidence in the District Court, everything in their brief, and I am sure everything that Mr. Bator is going to say this morning turns on that concept of this broad range material, and I would say--

Unidentified Justice: This is a facial attack, is it not?

Richard Bain Smith: --Yes, Justice Brenner, it is a facial attack.

I would submit to the Court that the statute they are attacking, the statute involving this broad range of material is a hypothetical statute.

It does not exist in Virginia.

Unidentified Justice: Mr. Smith, did the state concede at the appellate level below that books such as Hollywood Wives would be covered by the statute?

Richard Bain Smith: Justice O'Connor, I am sure today that the day that I die my tombstone is going to say

"Richard B. Smith said Hollywood Wives was obscene. "

I have said it over and over again.

What we said was, one of their witnesses said, of all the exhibits that they put in, of all their exhibits, that was the only one that she said she thought children should not see.

And so in the Court of Appeals and the brief, I think it was in a footnote, I said, of all the exhibits, that was the only one that might be involved based on what she had said.

I have since gone back... I came up, I looked through all the exhibits.

Not one exhibit they have submitted falls within this statute, including Hollywood Wives.

Now, what we suggest to the Court this statute involves is not this broad range of conceded beauty, conceded literary value, of very narrow range.

This statute deals with borderline obscenity.

It deals with exactly the same thing that Ginsburg v. New York dealt with, borderline obscenity.

Unidentified Justice: Well, what is your point, that the appellees had no standing below?

Richard Bain Smith: Justice O'Connor, I would submit that... I agree with what Mr. Bator said in his brief, that really the standing question and the merits question here turn on the same thing.

If the material they are talking about is this broad range, then they have standing, because concededly that is the type of material that they are displaying and have been selling to juveniles, and we concede that, what they are talking about.

But the point is that the burden that they have suggested exists here is that because of this broad range it is impossible for them to be able to comply with the statute both financially and otherwise without putting themselves out of business, or at least severely restricting their business.

And because of that, they... both their First Amendment rights and the First Amendment rights of adults will be overly restrictive.

And that, I think, is the importance of this broad range effect, because if we are talking about this narrow range of borderline obscenity, for one thing, there is nothing in the record to indicate that there is any burden whatsoever placed on them by that type of material.

And secondly, I would suggest to the Court that that is--

Unidentified Justice: Well, how are we supposed to decide that, by looking at the words of the statute?

Richard Bain Smith: --I would suggest to the Court two ways.

First, the amendment and the definitional statute, because that is something that the plaintiffs have purposely ignored in this case.

It is something that their witnesses below were never shown, was the definitions of the material involved in this case.

And I would submit that both from the face of the statute and their evidence supports that there is this narrow range, and I say that for this reason.

The definitions involved here are the same ones that the statute in Ginsburg versus New York used.

It is not just any sex, any sexual content that is in a book.

And that is where they have made their big mistake.

They have assumed all the way through that if there is any sexual content whatsoever, then this material falls within our amendment.

Unidentified Justice: Where did this case come from, what court?

Richard Bain Smith: District Court in Alexandria, and then up to the Fourth Circuit.

Unidentified Justice: Didn't those courts have some view of the breadth, the reach of the statute?

Richard Bain Smith: They never really focused on it.

The District Court never discussed--

Unidentified Justice: Well, they must have had some notion of what the reach was to do what they did to the statute.

Richard Bain Smith: --The Fourth Circuit did a very strange thing.

The Fourth Circuit refused to accept any of the findings of the District Court below, and then they took some findings--

Unidentified Justice: It seems to me they thought it was much broader than you say it is.

Richard Bain Smith: --Justice White--

Unidentified Justice: Is that right or not?

Did they view it much more broadly than you do?

Richard Bain Smith: --They were talking about a different statute, because they were looking at a statute from Georgia.

That--

Unidentified Justice: Well, you still don't answer my question.

Richard Bain Smith: --They never came to grips with this issue.

Unidentified Justice: With the breadth of the statute?

Richard Bain Smith: They never discussed one way or the other.

What they did, they talked about a case from Georgia in which evidence there dealt with a statute that the Court there found had this broad reach, and that is what--

Unidentified Justice: Well, I assume that if we found that the Court of Appeals or the District Court... the Court of Appeals defined this statute more broadly than you do, we might very well take the Court of Appeals view of what the meaning of a state statute is.

Richard Bain Smith: --As I said, if you take the broad view, we lose, but I would suggest that what the Court of Appeals did--

Unidentified Justice: Well, did the Court of Appeals take the broad view?

Richard Bain Smith: --What they did was, they said, we assume that there are these burdens.

They never got into construing the statute one way or the other, and I would submit to the Court that even if the Court of Appeals had actually gotten to the statute, we are asking this Court to look at it a second time, because we are suggesting that it is a matter of law, not as a matter of fact.

Unidentified Justice: Did you ask the District Court to abstain in order to obtain construction of this from the Virginia courts?

Richard Bain Smith: There was a request for an extension.

We were... the Attorney General's office was brought into this case on the certification of 2403(b).

One of the other defendants and all the defendants did ask the District Court to abstain.

And ironically, the reason the District Court refused to abstain was because he said there was no unclear parts of the statute, and yet for the last two years both the plaintiffs and the state have been arguing over the meaning of all these terms.

Unidentified Justice: Now, did you raise that question in the Fourth Circuit, the District Court's failure to abstain?

Richard Bain Smith: We raised the question of the District Court should have applied the narrowing constructions of the statute.

We did not in so many words say the District Court should have abstained in the sense of Abstention Doctrine.

We were arguing that under the First Amendment overbreadth test the District Court should have narrowed the construction.

Unidentified Justice: Well, those are two quite different points.

So you didn't preserve the abstention argument, did you?

Richard Bain Smith: The plaintiffs say we did.

The plaintiffs say we have been arguing... that is what we have been arguing all along, and the Court of Appeals did in fact say that abstention... they addressed the issue and said abstention was not appropriate.

Unidentified Justice: The Court of Appeals decided that... they passed on it.

Richard Bain Smith: They passed on it, if I am not mistaken.

Unidentified Justice: Didn't the Court of Appeals accepted the District Court's finding that this statute would affect a certain percentage of the materials in the bookstores?

Richard Bain Smith: No, sir.

Unidentified Justice: I thought it accepted a finding that from 5 to 50 percent.

Richard Bain Smith: What they said was this, and this is what I was starting to say earlier.

I have never seen this done in any case.

The Fourth Circuit said the evidence presented below is so minimal that we can't make a determination from what the District Court--

Unidentified Justice: Of what?

Richard Bain Smith: --Of the percentage of books involved.

Unidentified Justice: But the District Court found that.

Richard Bain Smith: The District Court made that finding.

Then the Court of Appeals say, but we assume that it does, and then they went off on this tangent on the statute in Georgia that has a completely different statute than Virginia's, but I would suggest to the Court that the reason that this statute deals with borderline obscenity and not this broad range, as I said earlier, it is from the face of the statute, it only involves certain very narrowly restricted types of activities.

It has to have--

Unidentified Justice: May I just go back to Justice White's question for a minute?

In Footnote 9, the Court of Appeals ends the footnote, saying,

"The District Court found that a significant percentage of the inventory of the average general bookstore varying between 5 and 25 percent falls within the amendment's restrictions. "

My question is, did you ask that the Court of Appeals set aside that finding as clearly erroneous on appeal?

Richard Bain Smith: --I cannot remember.

I honestly cannot remember.

Unidentified Justice: Because if you didn't should we not accept that as a factual determination?

Richard Bain Smith: If you read on with the footnote, Justice--

Unidentified Justice: That is the end of the footnote.

Richard Bain Smith: --If you read on with the footnote, they say, and the state said there is a very miniscule amount of material involved.

Unidentified Justice: Yes, you argue that, and then the last sentence is the one that the District Court found 5 to 25 percent.

Richard Bain Smith: Right, and the Fourth Circuit never said who was right, and when you go back up to what that is footnoted to, the Fourth Circuit said, whatever, we are going to assume that there is this broad range, and they cited to this case in Georgia that is a completely different statute involving a completely different range of material.

Unidentified Justice: Let me just put it this way.

Is it correct that your position in this Court depends on our disagreeing with the District Court's finding of facts?

Richard Bain Smith: Yes.

Unidentified Justice: So if it is 25 percent, you lose.

Richard Bain Smith: Yes.

Unidentified Justice: Well, you call that a finding of fact, Mr. Smith?

Richard Bain Smith: No, sir.

Unidentified Justice: Are you sure that is a finding of fact?

whether, what books in a store are covered by a particular statute?

That is just a factual finding?

That is all it is?

Richard Bain Smith: As I said earlier, we--

Unidentified Justice: Do we have to take whatever the District Court says about that?

Richard Bain Smith: --I believe... I think this Court has made it--

Unidentified Justice: Does it know how many cows there are in Virginia?

Richard Bain Smith: --This Court has made it clear for the last three decades that the question of what is obscene in a book is a matter of law, not as a matter of fact.

And you have to remember--

Unidentified Justice: I am not talking about what is obscene.

I am talking about what the statute covers.

Is that a question of fact, what books the statute covers, whether obscene or not?

Richard Bain Smith: --No, Justice Scalia.

I believe it is a question of law.

And when you have this--

Unidentified Justice: But it certainly has to be based on the evidence.

Richard Bain Smith: --It was based on--

Unidentified Justice: I mean, a court isn't going to find what percentage of books in a bookstore are covered by the statute without... even if it knows what the statute means, it has got to know what books are in the store.

Richard Bain Smith: --It was based on an assessment of two things.

First, the District Court said based upon the plaintiff's testimony and the exhibits, and the Court's review of the exhibits, I am submitting to the Court that as far as the exhibits are concerned, that is clearly a matter of law whether they are obscene for juveniles.

Unidentified Justice: All right, so say it is a matter of law.

Then what do we do with what the Court of Appeals did to the District Court's statement of the law?

Richard Bain Smith: Well, there again, they never really said what... they had that in the footnote.

They just threw it out that that is what the District Court said, but if you read the actual text of the case, they didn't accept it.

They just said, we are going to assume this, and they have a footnote, and the footnote says, well, the District Court says this, and the state says that.

They never say the District Court, they never say the state was wrong, they just say, we are going to assume it is based on what happened in Georgia, which is a completely different situation than Virginia.

Unidentified Justice: In order to decide what percentage of one's inventory is affected by a statute, you need to know first what the inventory consists of, and second, what the statute means, don't you?

Richard Bain Smith: Yes, Mr. Chief Justice, and I would submit to the Court, which was the point I was trying to get to with Justice White, as far as the evidence presented, it was based on the testimony of two bookstore owners who admitted on cross examination that they didn't have the faintest idea what the definitions were.

All of their testimony as to all of the material affected was given in a complete vacuum.

There was no basis for it.

There was, and I will, if I could for just a moment, this is indicative of both testimony directly from the appendix, and it will be very short.

Unidentified Justice: Before you do that, may I just--

Richard Bain Smith: Yes, sir.

Unidentified Justice: --Even if the witnesses didn't understand what the statute means, do you also contend the District Court didn't understand the statute?

Richard Bain Smith: I would submit to the Court that for the Disrict Court to find that the exhibits that these plaintiffs presented fell within the amendment, then the District Court completely misread Virginia law, because none of their exhibits fall within the statute.

Unidentified Justice: Well, you also there are suggesting that the plaintiffs who tried this case, those lawyers really didn't understand what was going on, that they really failed in their proof.

Richard Bain Smith: Oh, yes, sir, I think that is exactly right, they failed in their proof, and I suggest to the Court that it was purposeful, because I think that from the start of this litigation, it is a lot easier if you are going into a federal court and claiming that the state is trying to restrict James Joyce's Ulysses than it is to go in and say the state is trying to restrict Hustler.

And I cannot imagine any other reason why they never showed their own witnesses the definitions before they testified.

They told their witnesses... their witnesses came in with a group of books.

Their testimony was, and questionings from the plaintiffs, do you think that any book with a picture of nudity in it is going to be affected?

Yes.

That is not true.

That has nothing to do with the Virginia statute.

The Virginia Supreme Court has ruled, just like this Court has, it has to be a lewd view of the genitals, not mere nudity, and this permeated their testimony.

Unidentified Justice: Have they done that with respect to the juvenile statute?

Richard Bain Smith: I am sorry, Justice--

Unidentified Justice: Have they so ruled with respect to the juvenile statute as opposed to obscenity generally?

Richard Bain Smith: --They have ruled with respect to a similar statute.

They had... before this Court had the case of New York versus Ferber, which was the so-called kiddie porn case, Virginia had essentially that same case, and in talking about what is obscene for juveniles, the Virginia Supreme Court expressly held, citing Miller versus California, I believe, that whether it is adults or juveniles, mere nudity cannot be obscene for juveniles.

That case is cited in our brief, Freeman v. Commonwealth.

Unidentified Justice: Mere nudity can never be obscene for a juvenile?

Richard Bain Smith: Mere nudity in the sense of just a picture of the human body.

They went on to say that the nudity has to be a lewd exhibition of the genitals, as this Court gave as the example in Miller v. California.

And I would just like to read, if I can get back to the record just for a moment, it is a question to their... and this sums up their entire case upon which this is based.

This is after they have presented all of the books.

This is after they have presented all of their evidence.

On cross examination the state's lawyer asked,

"Question: Ms. Ross, do you know what the legal definition of harmful to juveniles is? "

"Answer: No. "

"Question: Has anyone read that to you? "

"Answer: No. "

"Is there one? "

"Question: No one ever told you there was one, did they? "

"Answer: I don't know. "

"Not that I remember. "

"What is the legal definition? "

That was the context of their case in the District Court.

Taking that--

Unidentified Justice: Did they ever just describe what kind of books were in these stores?

Richard Bain Smith: --They are general bookstores, just the typical... one is Ampersand Books in Alexandria, and the other one--

Unidentified Justice: Well, did they say... did they describe what kind of books they had in their stores?

Richard Bain Smith: --Yes, their exhibits were normal books that might--

Unidentified Justice: Well, let's assume the District Court looked at those books, then read the statute, and decided that X percent of those books in that store would be covered.

Now, let's just assume the District Court went through that routine.

You are asking us to disagree with the District Court.

Richard Bain Smith: --I am asking the Court that this is a matter of law, that the District Court was wrong about that, that none of their exhibits--

Unidentified Justice: Well, that means, I suppose, then we have to really look at... go through the exhibits, look at the evidence, and then decide what the statute means and say... you want us to say then that the Court of Appeals and the District Court were wrong.

Richard Bain Smith: --I will wager this case on one exhibit, Plaintiff's Exhibit No. 4, The Penguin Book of Love Poetry.

If that book falls within this statute, then we concede the case.

You don't have to look at all of them.

Just look at that one book.

Or if you want to look at all of them, the same thing goes for all of them, because every one of them--

Unidentified Justice: I don't want to look at any of them.

You are basically arguing that the statute has a narrower meaning than the lower court said, and presumably it could affect 80 percent of the books in a pornographic bookstore or 2 percent of the books in a regular.

The percentage of books affected across the board isn't so important.

It is what the statute means in terms of our decided cases.

Richard Bain Smith: --I think it is a joint question.

I think it is important what the statute means, but secondly, I think the number is important as far as these plaintiffs are concerned, because they have built their whole case on the fact that there is such a large amount that their whole case on the fact that there is such a large amount of material involved.

Unidentified Justice: But suppose there were a bunch of people that concededly deal in pornography.

Would it make much of a case for them to come in and say, look, this statute restricting juvenile access affects 90 percent of our books?

Richard Bain Smith: No, because then I would suggest this Court has no problem with the case, because then you would know you were dealing with borderline obscenity in this Court in every case in this area always found that that is... the periphery of the first amendment.

As Mr. Justice Stevens said in Young v. American Minitheaters, there is very little, if any, interest in the uninhibited exhibition of that type of material, and that is the type of material that we are involved in.

Unidentified Justice: The percentage is really not that consequential of that percentage is derived by the proper interpretation of the statute, as you say it is proper, then there wouldn't be anything horrible about coming down on the bookstore that happens to have 20 percent of it or 25 percent of it.

It is important from this context.

They came up with all these horrible ways, the only ways they could comply with the statute, and one of which was borrowing... totally barring juveniles from their bookstore.

I would suggest to the Court if you are talking about a normal everyday bookstore, barring juveniles from that bookstore because of supposedly this large amount of material would be devastating.

I would suggest to the Court that borrowing juveniles from an adult bookstore that has 90 percent of the inventory that is borderline obscenity would not be the kind of burden that this Court was concerned about in the cases dealing with this type of situation.

What is the narrowing language in the statute that you think was not adequately considered by the courts below?

Richard Bain Smith: Well, there are two parts.

The first part is the definitions themselves.

The definitions in Section 18.2-390, which I set out in my brief, very narrowly define types of sexual activities that are involved--

Unidentified Justice: Those are the definitions of what is harmful to juveniles?

Richard Bain Smith: --They are the definitions of the material involved in the statute.

Even if a work has that material, it is still not within the statute.

It still has to be harmful to juveniles, and that is what the Eighth Circuit said in the Upper Midwest case pushes this case up to the borderline of obscenity, because... and I will give you a quick example.

In Young v. American Minitheaters, those bookstores and theaters were found to be adult bookstores based on just the fact of the type of sexual material they involved, sado-mashochistic abuse, lewd nudity, this kind of thing.

Those types of materials would not fall under this statute, because you have to go a step further.

It has to be obscene for juveniles, and it is exactly what the Eighth Circuit was talking about in the Upper Midwest case that I cited in the brief.

Unidentified Justice: Well, isn't your argument on this percentage business, isn't it that you are contending that this statute has only a de minimis consequence to these, the people who... the plaintiff, the plaintiffs' bookstores?

Richard Bain Smith: Yes, sir.

Unidentified Justice: That is right?

Richard Bain Smith: Yes, sir.

Unidentified Justice: And therefore it really is sort of a miniscule burden to cause them to go through the steps to comply with the statute.

Richard Bain Smith: Given the... interest to the state in protecting its juveniles, given that it is borderline obscenity, that is exactly correct.

Unidentified Justice: But if it affects a much larger percentage, you seem to agree that the steps they would have to go through would be too burdensome.

Richard Bain Smith: As far as the everyday bookstore, that's correct.

Unidentified Justice: Yes.

Richard Bain Smith: But one of... and let me make this clear, getting back to what Justice Scalia was asking earlier.

For an everyday normal bookstore to bar juveniles because of some part of their material, a miniscule part, would be devastating for them.

For an adult bookstore with 90 percent books borderline obscenity, who cares?

I would like to reserve the remaining time for rebuttal unless the Court has any further questions.

Chief Justice William H. Rehnquist: Thank you, Mr. Smith.

We will hear now from you, Mr. Bator.

ORAL ARGUMENT OF PAUL M. BATOR, ESQUIRE ON BEHALF OF THE APPELLEES

Mr. Bator: Mr. Chief Justice, and may it please the Court, in Butler v. Michigan this Court announced a fundamental First Amendment rule, one from which it has never deviated.

The states are not free to place substantial restrictions on the access of adults to books and magazines that are protected by the First Amendment, even if the purpose of the protection is to safeguard children.

Our central submission today is that the Virginia nude display statute on its face violates this fundamental principle, because unlike the preexisting sales statute, which had no impact whatever on adults, this statute requires booksellers immediately to place important new restrictions on adult access to books protected by the First Amendment.

It places an immediate and affirmative obligation on booksellers to screen their inventory, to reorganize their displays, and to purge from their shelves, where books are freely and readily available, all books that have enough sexually explicit materials in them that they are not suitable for sale to children.

Unidentified Justice: Why couldn't you just have an adults only part of the bookstore?

Mr. Bator: I beg your pardon?

Unidentified Justice: Why couldn't you just have an adults only part of the bookstore?

Mr. Bator: Well, Your Honor, we think that would involve a very substantial restriction on the access of the adults.

Unidentified Justice: But all you'd be restricting would be juveniles, I would think.

Mr. Bator: Your Honor, there are a couple of reasons why that would be very difficult or onerous for adults.

First of all, books are sold in large numbers of places which are not bookstores.

We have newsstands, we have bookstands in supermarkets, at airport and drugstore counters.

They can't have two different sections.

It really is not feasible for them to have an adult section.

Secondly, the District Court--

Unidentified Justice: Are they members of your... are people like that members of your organization?

Mr. Bator: --Yes.

Unidentified Justice: Airport bookstands?

Mr. Bator: Yes, we represent really the whole gamut of booksellers and distributors, including those, Your Honor.

Now, another problem with--

Unidentified Justice: And hard core bookstores?

Mr. Bator: --I beg your pardon?

Unidentified Justice: And hard core bookstores?

Mr. Bator: No, our clients do not include any adult or porno bookstores whatever.

We do have two 20 to--

Unidentified Justice: Did the appellees below, Mr. Bator, make a claim that they sold books that met the definition of what is harmful to juveniles?

Mr. Bator: --Yes, the testimony below was very clear.

Unidentified Justice: I mean, well, but did the... your clients, did they claim that they display routinely books which meet the statutory definition of harmful to juveniles?

Mr. Bator: The statutory definition under the Virginia display statute.

Unidentified Justice: Yes.

Mr. Bator: Yes, Justice O'Connor.

We have testimony in the record, very clear testimony in the affidavits as well as in the oral testimony on the part of these bookstore owners that they understood the statute to cover somewhere between 25 to 40 percent of--

Unidentified Justice: Well, but did their testimony take into account the actual statutory definition, which does seem to be much more restrictive than the testimony would indicate they thought it was?

There is something to be said for what the state's attorney is arguing.

Or, to put it differently, Mr. Bator, if your clients indeed have 40 percent of books that meet this definition, I think you are inaccurate to say that they are not porno stores.

I think it is incredible that anybody could come within this... 40 percent within this definition is very high, it seems to me.

Mr. Bator: --No, Your Honor, because I think the statute covers a large amount of material.

The statute covers a large amount of material that does not fall into this classification of what do we mean by is it porno, but that does have some sexually explicit material.

I go back to both questions, because I want to be able to cover it.

Your Honor, these booksellers are, of course, not lawyers, but, of course, they are the ones who have to deal with this statute.

Unidentified Justice: Apparently they had not read the statute when they testified.

Now, this definition defines it exactly as the Court has in Miller, only refined down to juveniles, predominantly appeals to the prurient, shameful, or morbid interest of juveniles, is patently offensive to prevailing standards and the adult community as a whole with respect to what is suitable material for juveniles, and when taken as a whole lacking in serious literary, artistic, political, or scientific value for juveniles.

Did the testimony and the witnesses have in mind that precise definition?

Mr. Bator: Your Honor, I think the witnesses testified that they read the statute, but I think they read them as an ordinary nonlawyer would read them, and they gave an explanation of how they would understand this statute, and of course that is the perspective that is important.

They understood this statute to cover a substantial amount of their inventory.

Unidentified Justice: Well, as I looked at it, the ordinary books like Ulysses and other things that I would think of clearly wouldn't fit within this definition, so I am just wondering whether we have two ships passing in the night here.

Mr. Bator: Your Honor, I believe, and this now goes again to Justice Scalia's question as well, that it is a perfectly reasonable understanding of the statute and really just what this statute suggests that if you think that a book is unsuitable for sale to 13-year-old you may not display it in your bookstore.

Now, that does not just include porno.

That includes a large range of material which I would be rather averse to having a 13-year-old child of mine buy a in a bookstore, and that very much includes a large range of popular as well as literary works.

Now, we do have a District Court finding on this.

That is to say, it seems to me that the Attorney General has here said everything turns on what this statute encompasses.

But we have two courts below that made findings on that issue.

The District Court said they... the District Court didn't accept the testimony completely.

It lowered the percentage.

The District Court made its own judgment.

It said somewhere between 5 and 25 percent of the inventory of the non-adult bookshop is likely to be covered here.

Unidentified Justice: Did the District Court give its opinion as to precisely what the statute meant?

Mr. Bator: Yes.

Unidentified Justice: Where do we find that?

Mr. Bator: The District Court made a finding, and it is on Page A... on Page A20, third full paragraph.

Unidentified Justice: A20--

Mr. Bator: A20 of the jurisdictional statement.

The Court concludes that the average general bookstore carriers a significant percentage of materials varying between 5 and 10 percent that are harmful to juveniles as defined by--

Unidentified Justice: --Now, that could mean two different things, couldn't it?

It could mean that these bookstores are really then quite different than you have characterized them because they carry material that is much like that described in the Miller statute.

Mr. Bator: --No, Your Honor, I honestly believe the record would not support that conclusion.

These are ordinary bookshops.

Unidentified Justice: But all this finding tells you is that a certain percentage of the books in the store are covered by the statute.

Now, to me that doesn't militate one way or the other as to whether the statute is good or bad, because it depends on what the inventory of the bookstore is.

Mr. Bator: Yes, but the record is replete with descriptions of what these bookstores are, and I hope very much... the women who owned these bookstores gave very vivid and interesting testimony about what it is like to run an ordinary bookshop in Alexandria or Arlington.

These are the opposite of porno bookshops.

Now, the District Court finding was based in the context of these bookshops and the exhibits and the affidavits and the testimony, and--

Unidentified Justice: As far as the testimony goes, Mr. Bator, it is not worth a whole lot if it comes from people who haven't read the statute.

Mr. Bator: --I am sorry.

Unidentified Justice: I mean, as far as the testimony is concerned, it is not worth a whole lot if it was testimony by people that hadn't read the statute that they purported to be applying to the books.

Mr. Bator: Well, the District Judge made his own finding based not only on the testimony, but the affidavits and the exhibits.

The Court of Appeals was very careful not to disturb that finding, although it did say that the testimony is such that it is very hard to guess the exact percentage.

Unidentified Justice: --of the exact percentage anyway.

It is then... that is just to... as a predicate for inquiring how much of a burden it is on adults or within the bookstore.

Mr. Bator: It seems to me... again, this goes really to the interchange I had with Justice O'Connor.

That is, it is terribly important to understand that the life of this statute plays itself out not at the level of constitutional theory or lawyers' interpretation.

It plays itself out between the local bookshop and the local community, and that bookshops's fear of arrest and prosecution by the local attorney, commonwealth attorney and the local police.

Unidentified Justice: Yes, but it is not impossible to comply with the statute, no matter how much percentage of the books, and your submission is, and I guess it was taken below, that none of these ways of complying would remove the burden on adults.

Mr. Bator: Our point is not that it is impossible to comply, but that the effect of good faith compliance is likely to be a very drastic restriction on the free access of adults to these books.

Unidentified Justice: Well, Mr. Bator, could the bookstore set up a children's only section, not an adults only, but a children's only section, so that people who are affected are the children, not the adults?

Mr. Bator: I suppose a bookstore could have a children only section.

The real question is whether if you want to read a popular work or browse or look at a popular work of literature in an ordinary neighborhood bookstore, whether you have to enter a section that is labeled X, labeled adults only.

Unidentified Justice: Well, if you had a children's only section you wouldn't have to do that as an adult.

Mr. Bator, if every store had an adults only section, as you tell us would be necessary if all bookstores have large quantities of these books, do you really think it would be a great disincentive for adults to go into that section?

Have they stayed away from the movies in droves when they have adults only films?

Why would their reaction to general adults only sections in bookstores be any different?

Mr. Bator: Your Honor--

Unidentified Justice: You are being peppered with questions from both sides.

Just take your time and answer them, and hope in the future they will be asked one at a time.

Mr. Bator: --Your Honor, I feel like the hockey goalie who has pucks coming from all sides.

0 [Generallaughter.]

Your Honor, on the question of the deterrence, again we have... the District Court and the Court of Appeals went into that, and there was testimony.

The problem here is that the sale of books is very much affected by display, that is to say a large proportion of books are sold to people who aren't planning to go but who go in to read, to browse, and they come upon a book they rather like, so it is a very sensitive area.

The District Court found that there would be a substantial deterrent to adults... I understand that that doesn't deal with Justice O'Connor's hypothetical, but if it says X rated, adults only, a lot of people are going to stay out because they are embarrassed, and they don't want... These are not people in porno bookshops.

These are people in ordinary bookshops.

The fact is... this is not of record, and it is just based on my New York Times reading, but as I understand it, in the movie industry as well, even though movies are different because people plan to go to a movie, it is not an impulse thing, but an X rating on a movie, as I understand it, is thought to be commercial disaster, but there is another point here, Your Honor, that I want to stress before I get back to the other side of the bench.

There would be an enormous change in the general ambience and atmosphere of bookshops if what we have is an adult section, X only, and a children's section, children only.

That is to say, the whole atmosphere of a bookstore that we know... every one of us has been in a bookstore on Saturday afternoon, and really that is what this case is about, is what kind of bookstores do we want?

Do we want a bookstore where every book or every shelf is labeled with a government seal of approval or a government seal of disapproval?

That is the issue in this lawsuit.

The fact is that the life of the bookstore is free circulation for browsing, and that is what we think the statute badly inhibits.

Now, there is another problem, Justice O'Connor.

There is a large number of books where it would be disastrous to say children only.

I mean, I guess I don't even know quite what that would mean, because there are a lot of books that are absolutely proper for kids and for grown-ups and they are just general books.

I don't think we can reorganize the bookshops, this world of books and of intellect in terms of these tight rules, and really, I think our question is whether it is constitutional for the government basically to create an across the board rating system for books, and there is a great--

Unidentified Justice: Well, Mr. Bator, what if the statute just said it prohibited allowing juveniles to peruse and examine material that is harmful to them?

Mr. Bator: --I think that would be a more difficult case, although that also would create a tremendous problem for booksellers.

Unidentified Justice: But it certainly wouldn't be a burden on the adults, would it?

Mr. Bator: If the crime were for the booksellers to allow kids, I think there would be a very serious First Amendment problem, very much the same sort that the Court had in the Smith case, because the effect even of that statute would be to put pressure on the bookseller to self-censor.

The vice of this statute, and I think the problem that the Attorney General has absolutely never confronted, is that this--

Unidentified Justice: Well, at least it would avoid the burden on the adults.

Mr. Bator: --If the bookseller looks at the statute, even in the version Justice O'Connor gives, and decides the only safe thing to do here is if it has sex in it, put it under the counter or put it in an X-ray separate section, that is the burden on the adult.

Unidentified Justice: You think the burden would be to saying if you had a separate section in the bookstore that said minors not allowed?

Mr. Bator: It would be very problematic Your Honor.

I think that a lot of adults would find that intensely uncomfortable because it really labels them.

Unidentified Justice: As not minors?

Mr. Bator: I beg your pardon?

0 [Generallaughter.]

Unidentified Justice: As not minors.

It labels them that way.

Mr. Bator: They are not.

They are not minors.

I think in this world everybody knows what that is all about, and it would be a very radical departure from our traditions of what bookstores are supposed to be like.

If the statute as we argue applies to a large range of perfectly ordinary literary, serious and popular works, the point about Hollywood Wives, Justice O'Connor, is not for us to wrangle about whether it is covered or not, but if Hollywood Wives is covered, then there are hundreds of ordinary best sellers, potboilers of every sort that are covered here, and in a sense they ought to be covered.

That is to say, there are a lot of books that we do not want the bookseller to sell to a 12-year-old, and the vice of this statute is, if you don't want it sold to a 12-year-old, you have got to remove it from the shelf.

Unidentified Justice: Well, you concede that the statute, the old statute that prohibited selling the items to juveniles is constitutional--

Mr. Bator: Yes.

Unidentified Justice: --Yet surely that is a burden on the bookstore owner.

Mr. Bator: It does put a burden on the bookstore--

Unidentified Justice: Now, why is it a substantially different burden to say you won't allow juveniles to peruse the material that you can't sell to them?

Mr. Bator: --We have two answers to that, Justice O'Connor.

We think that the burden on the bookseller in the case of the display statute is more onerous, because you have to do this advance screening of the whole inventory, but the really important point is that complying with the burden in the display context is much more dangerous to the First Amendment because it restricts the access of adults.

Complying with the burden with respect to sales has no impact on adults at all.

But if you remove a book from the shelf, the easily accessible shelf, because you are afraid of a kid coming upon it, you have also removed it from the adult.

There is another point I would like--

Unidentified Justice: May I ask you a question, Mr. Bator?

Does your argument really focus on the fact that the statute applies to written material as opposed to pictorial material, you know, the magazines such as Hustler and so forth--

Mr. Bator: --The statute does apply to both.

Unidentified Justice: --I understand it does apply to both.

Would you have any objection, or does your proof support any objection to a statute which just excluded the written material?

Mr. Bator: Well, Your Honor, that would be a more difficult case, and it is not our case, and I would hope very much that the Court would not on this record and with these briefs try to answer that question.

Our position would, however, be, if you push me to the corner of saying, that the Court's cases do not support and the First Amendment should not support a lesser protection for pictures than for text, but that's--

Unidentified Justice: You would say even if the statute were limited to magazines such as Hustler, assuming they are not obscene, and Playboy and the like, and those... you have a constitutional right to have those displayed publicly.

Mr. Bator: --Not a constitutional right to buy, but the access problem--

Unidentified Justice: But to display.

Mr. Bator: --I think is more difficult, but of course the important point here is that that is not what Virginia has done.

It seems to me we really have to focus on what Virginia has done.

Virginia should not be allowed to have it both ways.

That is, they have drafted a statute that at least from the perspective of the bookseller is sensibly and, as the District Court said, consensitively viewed as a broad statute that encompasses any material that has enough sex in it so you don't want it sold to a kid.

Now, they--

Unidentified Justice: I don't know how you can say that, Mr. Bator, unless you are talking about a bookseller, as some of your witnesses were, who hadn't read the statute.

If you read the statute, this covers very offensive material, but only very offensive material.

Mr. Bator: --I think, Justice O'Connor, they have read the statute, but when they were cross-examined, these were women who were not used to the business of tight cross examination at law, and when they were cross examined on detail, they were vague on the detail, but that is the real world.

That is how this statute is going to operate in the real world.

Unidentified Justice: Mr. Bator, may I follow up on Justice O'Connor's question about whether the statute would be all right if it merely prohibited permitting juveniles to browse as opposed to requiring you to segregate materials in a fashion so that it is impossible for them to browse?

Do we have any reason... is it clear that the statute requires any more than that?

If you look at the definition of unlawful act it says

"It shall be unlawful to knowingly display for commercial purpose in a manner whereby juveniles may examine and peruse. "

Now, "may" could well mean two things.

It could mean it is possible for them to do so or it could mean it is permitted for them to do so, so it may well be that all that is necessary under the statute is a sign in the store that says juveniles not permitted to browse.

Mr. Bator: Well, Your Honor, I don't think a sensible bookseller in the local community faced with the possibility of local police and local prosecutors would read the statute that way.

The statute prescribes display.

It says any display.

Unidentified Justice: The statute also has a definition of "knowingly" which seems to suggest, and knowingly, it says "knowing display", the definition of "knowingly" says that you have to know or have reason to know the age of the juvenile.

Now, that suggests that there has to be some concrete occasion in which the juvenile is being allowed to browse, and you have reason to know what his age is.

Isn't that a permissible reading?

Mr. Bator: We read the "knowingly" in light of his definition again in the Virginia statute.

I think the bookseller can't just sit back and say I don't know anything.

I think what they have to do is make a good faith effort to comply, and compliance here means compliance with rules about display that may give access to juveniles.

Now, if the statute... we are constantly dealing a little bit here with two possible statutes.

I would really like to say that Virginia can't and shouldn't be allowed to have it both ways.

That is what they do is, they draft a statute that is broad enough so that the bookseller is under pressure to self-censor and to comply broadly.

And then the Attorney General comes in here and says, oh, no, no, no, this statute is--

Unidentified Justice: Well, did you object to a motion to abstain in the District Court?

Mr. Bator: --There was, Your Honor.

The District Court found it is not an appropriate case for abstaining.

Unidentified Justice: Did you oppose the motion--

Mr. Bator: Yes.

Unidentified Justice: --of the state to abstain?

Mr. Bator: Yes, we have not in any way agreed that... in fact, we do not think the law would permit abstention here.

Now, the Attorney General did not--

Unidentified Justice: Well, certainly you could have gotten a conclusive construction of the statute by abstention, a statute which we are now arguing about the meaning of.

Mr. Bator: --There is no readily available narrowing construction here.

The Attorney General has not come up with a standard here.

Unidentified Justice: Well, may I ask, Mr. Bator, does Virginia have a certification procedure?

Mr. Bator: It does, yes.

Unidentified Justice: Was any effort made to ask the District Judge to resort to that?

Mr. Bator: We do not think that there would be a meaningful question that could be certified.

Unidentified Justice: As to definition as to what the statute meant?

Mr. Bator: We don't think a meaningful question could be certified on that because the Attorney General himself has not come up with an intelligible standard.

I mean, what he said is miniscule.

Unidentified Justice: But in any event--

Mr. Bator: I beg your pardon?

Unidentified Justice: --no motion was made to the District Court to certify.

Mr. Bator: In the District Court there was a motion made.

We opposed it.

I don't--

Unidentified Justice: To certify?

To certify?

Mr. Bator: --Oh, no motion to certify, just to abstain.

Now, I think the abstention point was abandoned in the Court of Appeals.

The Court of Appeals did not pursue it.

And I don't think it was pursued in any question to this Court.

We did brief the question because we thought that it was an important problem in the case.

Whether the Court should say, well, let's wait and see, somehow see what the state courts say, but we think that would be inappropriate.

The bookseller can't wait and see.

The bookseller has to comply now.

And the fundamental problem is that this so-called miniscule construction has really no content.

That is, the Attorney General has not come up with an intelligible standard for what this so-called narrow construction is.

The Court's cases--

Unidentified Justice: Well, isn't it just to apply the definitions as they are written in the statute for what is harmful to juveniles?

That is pretty narrow.

Mr. Bator: --No, we read that as being very broad, and the District Court and the Court of Appeals read it as being broad, and it would be really unprecedented for this Court to reverse two courts on that issue of state law.

That would be quite an unprecedented thing for the Court to do, is to reverse two courts on the meaning of a state statute on which they have agreed.

I want to finish one thought if I--

Unidentified Justice: Excuse me, Mr. Bator.

Where do the courts describe the meaning of it?

Where do they describe the meaning of it, that we would be reversing their description of the meaning of the state law?

Mr. Bator: --Well, I--

Unidentified Justice: As opposed to just saying it covers 40 percent of all books--

Mr. Bator: --I think their understanding of the meaning of the statute is implicit in what they understood the impact of the statute to be, that is, it is implicit in their description of what this statute does to the ordinary bookshop under the threat of prosecution and punishment by the local police and local prosecutor.

I mean, what we... it seems to us that there is one thought I have been trying to get out that I would like to get out here, that we are talking about the First Amendment.

We are talking about the Butler rule, which places a very serious rule against the state in doing things that can have an impact on adults.

Now, Virginia passes this broad statute which the consensus of the testimony and the finding of the District Court and the Court of Appeals places a substantial burden on adults.

Now, the Attorney General comes in here and says, no, no, this statute is a paper tiger.

I don't think that counts as the kind of narrowing construction that this Court said can save an overly broad statute.

That is what this Court should not do, is allow the statute to be reinterpreted on the... because the Attorney General comes in here and sort of says, well, we are not going to enforce this statute against any respectable bookshop.

Anyway, it is not the Attorney General who enforces the criminal law of Virginia, it is the local Commonwealth Attorneys.

This statute places a serious burden of self-censorship on the bookshops, and complying with that burden we feel will place a very substantial inhibition on what grown-ups have always done, freely go to a bookshop, browse in the bookshop, and decide what they want to read, decide what they want to buy, and that impact on adults, which doesn't exist at all in a sales situation we think is the fundamental vice of this statute.

Self-censorship leading to an access burden on adults is what makes this statute unconstitutional under the First Amendment.

Like the battered hockey goalie, I will now retire unless there are questions.

Unidentified Justice: --Before the goalie retires, may I ask this question?

I have been thinking, as Justice Brennan apparently suggested, about the possibility of certification.

Are there three or four works that are identified in the record with respect to which the two of you disagree as to whether they are covered by the statute?

Mr. Bator: I am sorry, Justice Stevens.

You will have to--

Unidentified Justice: Are there two or three specific works of literature as to which you think the statute covers and your opponent says it doesn't cover with respect to which we could ask the Virginia Supreme Court whether it covers?

Mr. Bator: --I suppose you could frame an abstention or a certification based on one or two or three books.

Unidentified Justice: Do you know of any such examples that come to mind that sort of test what the breadth of the statute would be?

Mr. Bator: I suppose that there is a disagreement about Portnoy's Complaint, which is not a book I would like to have sold to a 12-year-old, and which I think is clearly covered, and I guess the Attorney General says today that it is not covered, but suppose... suppose the Virginia Supreme Court tells us it is covered or not covered.

Is that the kind of intelligible narrowing construction of the statute?

That is to say, it is a single book, and this Court's cases make it very clear that a whole series of litigations to narrow a statute are not sufficient.

There has to be a quick cure.

Unidentified Justice: Well, Mr. Bator, would it make a difference if the Court said the statute was complied with if the bookstore owner just said juveniles were not permitted to browse?

Would that make a difference?

Mr. Bator: Well, it would make a difference, but we do not think it would save the statute.

Unidentified Justice: So that is a certifiable question.

Mr. Bator: We do not think it would save the statute, Your Honor.

First of all, juveniles also have a constitutional right of access to books.

I mean, that is a major problem.

Unidentified Justice: But they don't have a right of access to books that are harmful to minors within the meaning of this definition, do they?

Mr. Bator: So again what you would have to do is, you would have to reorganize the entire display of the bookshop and you would have books that are for everybody, and some just for kids, and just some for adults, and we think that that would produce a major change in the First Amendment spirit of how bookstores are run.

Chief Justice William H. Rehnquist: Thank you, Mr. Bator.

Mr. Smith, you have six minutes remaining.

ORAL ARGUMENT OF RICHARD BAIN SMITH, ESQUIRE ON BEHALF OF THE APPELLANT -- REBUTTAL

Richard Bain Smith: Mr. Chief Justice, I will not take it all.

The reason we didn't ask to have this case certified below was because this Court now has a tool that neither the District Court had nor the Fourth Circuit had.

Virginia's certification procedure only became effective April of this year.

There was no certification procedure available.

Unidentified Justice: That is effective for this Court now, Mr. Smith?

Richard Bain Smith: We would certainly say it is.

Yes, sir.

It is effective... it was effective April 1st, 1987.

It is Rule 5:42 of the Rules of the Supreme Court of Virginia.

It is very comprehensive, and, Justice Stevens, I won't ask that just we agree on four exhibits be sent back, you send every exhibit that the plaintiffs put into evidence below, and I will take the same position before the Supreme Court of Virginia that I am taking here that not one of those falls within the statute.

Unidentified Justice: Specifically Portnoy's Complaint.

Richard Bain Smith: Portnoy's Complaint was not an exhibit.

Unidentified Justice: Are you familiar with the book?

Richard Bain Smith: Yes.

That is not covered.

Unidentified Justice: That is not covered.

Richard Bain Smith: That is not covered.

Unidentified Justice: So you do have a square disagreement on that.

Let me ask you another... may I ask you another question--

Richard Bain Smith: Certainly.

Unidentified Justice: --on the meaning of the statute?

In the definition of harmful to juveniles... I had it in front of me a minute ago... the last subparagraph is on A42 of the jurisdictional statement... has a subparagraph C,

"is, when taken as a whole, lacking in serious literary, artistic, political. "

and so forth, "value", but the introduction of that paragraph says

"quality of any description or representation in whatever form. "

Now, my question is, supposing you have a ten-chapter book, one chapter of which would satisfy the statute.

Does the book satisfy the statute or not?

Richard Bain Smith: Justice Stevens--

Unidentified Justice: The book as a whole.

Richard Bain Smith: --if you would look at Section 18.2-391, which is not the definitional statute but the actual statute under... it is paragraph 2.

It starts off, it says, "Any book, pamphlet"--

Unidentified Justice: I understand.

Richard Bain Smith: --The last line of that answers the question.

Not only must be harmful to juveniles, it has to be taken... the book has to be taken as a whole, just as with this case you cannot pull isolated passages out.

Unidentified Justice: I understand that Paragraph 2 does, but the definition of "harmful to juveniles" does not.

It is only because of the additional language in Paragraph 2 that you answered my ten-chapter book the way you do.

Richard Bain Smith: Well, if one chapter is obscene, and then the other nine... or obscene for juveniles, and the other nine chapters are fine for juveniles, would that book fall within it?

No, sir.

Unidentified Justice: It wouldn't fall within... that wasn't my question.

It wouldn't fall within subparagraph 2 of 391, but it would fall within the definition of subparagraph 6 of 390, would it not?

Richard Bain Smith: That is where... the reason hat is where it becomes important to look at that... what I just--

Unidentified Justice: I understand.

Richard Bain Smith: --the part I pointed you to, because that is dealing with books.

If we are talking about just a picture, then the picture in itself is as a whole, but that is why they added in again, taking... in other words, you have got... with respect to books, you have got two taken as a wholes.

Not only you have taken as a whole as far as harmful to juveniles, but the book as itself has to be taken as a whole.

Unidentified Justice: Let me be sure.

If I merely had the definition of harmful to juveniles, the chapter we speak of would be harmful, the book as a whole would not, but you are saying 391 would not apply to that because of subparagraph 2 to that ten-chapter work?

Richard Bain Smith: I don't think it would under either way, and the reason I say that is, this is the Virginia version of Miller versus California as it relates to juveniles, and the entire work has to be taken as a whole.

You can't pull an isolated passage out of the book, and that has been this Court's jurisprudence for 30 years, and that is what the Virginia Supreme Court has always followed.

You can't have a book that has... and that is what happened below.

They would... some of the exhibits there would be a vivid description of a rape in three pages out of 700 pages, and that doesn't make it fall within the statute.

Unidentified Justice: I am not going to ask you to debate it with me.

I am just trying to ask your understanding.

Richard Bain Smith: I understand, and--

Unidentified Justice: If Chapter... subparagraph 2 were not in Section 391, and we were merely dealing with section 390, which I gather is the definition that existed before the recent amendment, would my example of a ten-chapter book containing one sexually explicit chapter that would follow the definition, would that book, work as a whole in your view be harmful to juveniles within that section?

Richard Bain Smith: --No, and perhaps the easiest... or the reason for it is that under Virginia law this is a criminal statute, and has to be strictly construed against the Commonwealth.

In any type of disagreement like that, the state loses.

Unidentified Justice: Thank you.

Mr. Smith, suppose a bookseller does not segregate books.

Would he be able to comply with the Virginia statute by simply saying, whenever I see a juvenile, a person who looks to me like a juvenile, browsing in a book which is a book that I ought to know falls within this statute, I stop that juvenile and ask him to leave the store.

That is my store policy.

Would that be enough to comply with the statute?

Richard Bain Smith: Yes, sir.

As a matter of fact, that exact example took place in this case.

One of the bookstore owners said that she had some material that she thought might be adult material, and she said,

"But I keep it on a shelf next to my counter, where I keep an eye on it so juveniles can't get to it. "

Of course that complies, because the state has to prove that she syinterly... we have to prove that she knowingly violated the statute.

Unidentified Justice: Well, I am not talking so much about knowingly as I am talking about the language

"display for a commercial purpose in a manner whereby juveniles may examine and peruse. "

"May"--

Richard Bain Smith: Because I think--

Unidentified Justice: --"May" means it is possible for them to do so or they are permitted to do so.

Richard Bain Smith: --This Court had a case which I have cited in my brief called the Foreign Products Case, and that case said that when used in a statute as this "May" is used, it can... mean might or it can mean reasonable certainty or it can mean actual tendency under Virginia law, since it has to be strictly construed against the Commonwealth, it has to be what you have suggested, and it would qualify.

Chief Justice William H. Rehnquist: Thank you, Mr. Smith.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Ohio v. Gallagher - Oral Argument

Thu, 23 Aug 2012 18:29:21 +0000

Case:

Ohio v. Gallagher

Media File:

74-492_19751202-argument.mp3

Related Transcript:

74-492_19751202-argument

Transcript:

Argument of Herbert M. Jacobson

Chief Justice Warren E. Burger: We will hear arguments next in Ohio against Gallagher.

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

Mr. Herbert M. Jacobson: Mr. Chief Justice and may it please this Court.

Our respondent in this case is a man by the name of Terry Gallagher and in a resume of the facts as they developed a trial, he was tried without a jury and the Court found him guilty in November of 1972 and the offense was armed robbery and he was thereafter sentenced to the Ohio penitentiary.

At the time of the offense however, Gallagher had been on parole.

He had been placed on parole in February of that year.

His parole official was one William Sykes who was a member of the Ohio Parole Authority and was assigned to our area.

Upon being informed of the armed robbery, Sykes, saying that it was part of his duty to do so and part of his job, visited Sykes at the County Jail.

He visited Gallagher at the County Jail, sorry.

Now there are two visits that Sykes made to Gallagher.

One was on June 26th of 1972 and the respondent did not speak to him and failed to make any statements whatsoever and there was no conversation.

Four days before that, however, on June 22nd, the respondent Gallagher had been contacted by Deputy Sheriffs of our County who were investigating the armed robbery offense and had presented him with a printed Miranda Form which had all the warnings on them and he acknowledged these Miranda Warnings and signed the stencil form that had Miranda on them.

This was admitted to be a voluntary act by him and that he fully understood that he was signing an acknowledgment that Miranda had been ordered.

This in effect, was one of the reasons why Gallagher did not talk to Mr. Sykes when he visited him the first time on June 26th.

Keeping in mind that he also was on parole and had not been in contact with the criminal system before and when Sykes then determined that in furtherance of his duty as a state parole officer to go back and visit with him and he did so a week later on July 3rd.

Now this was eleven days after he had received his full panoply of rights under Miranda and in an informal conversation at that time, Sykes obtained or rather heard from the respondent Gallagher of his participation in this armed robbery.

There were no Miranda Warnings given at those conversations that took place between Mr. Sykes and Terry Gallagher on July 3rd.

Later at the trial, the state called Mr. William Sykes as a witness and he testified on behalf of the state indicating what Gallagher had acknowledged to him and of course the statements were inculpatory and he further indicated that he was not forced to talk his parole officer.

The objections were made at the time of trial to Mr. Sykes' testimony.

The Trial Court overruled the objections.

The matter was taken to our Second District Court of Appeals and in an unanimous opinion the Appellate Court there held that there was no prejudicial to the respondent Gallagher and affirmed the Trial Court.

The matter then went to the Supreme Court of our State.

Leave having been granted for the appeal and they in turn found that the utterances that were made by the respondent to Sykes on July the 3rd were inadmissible because the parole officer had failed again to warn the respondent of his rights under Miranda --

Unknown Speaker: Mr. Jacobsen?

Mr. Herbert M. Jacobson: Yes.

Unknown Speaker: I am looking at the opinion of Supreme Court at 817 of the petition for certiorari and the opening sentence is the question presented is whether testimony concerning statements made by appellant to his parole officer was received at trial in violation of appellant's privileges against self-incrimination.

As guaranteed by Section 10, Article 1 of the Ohio Constitution and the Fifth Amendment of the United States Constitution.

On what did the affirmative answer to that question that there was a violation of the appellant's privilege against self-incrimination rest on a violation of the Ohio Constitution, of the United States Constitution or on both?

Mr. Herbert M. Jacobson: The Supreme Court in our State indicated that it was both.

They did not use or.

They said that was a violation of rights of self-incrimination guaranteed by Section 10 Article 1 of our Constitution and --

Unknown Speaker: So we are viewing as a violation of both?

Mr. Herbert M. Jacobson: It is a violation in my opinion of both not one without the other.

It is a violation and the Court specifically stated it was and the Fifth.

Unknown Speaker: My question is the Jurors Ohio Supreme Court hold that it was a violation of both constitutions?

Mr. Herbert M. Jacobson: Yes, both.

Unknown Speaker: Then now you are out of court.

Mr. Herbert M. Jacobson: No sir, because Oregon versus House indicated that holding --

Unknown Speaker: What jurisdiction do we have?

Mr. Herbert M. Jacobson: Under the Fifth Amendment and under the Due Process clause and the Fourteenth, two.

Unknown Speaker: No, no, no.

When a State Court decision rests on both State and Federal grounds, are we not without jurisdiction to entertain?

Do you feel?

Mr. Herbert M. Jacobson: No the Supreme Court of Ohio did not use the word 'or', it said 'and' it was in violation of the Fifth Amendment to the United States.

Unknown Speaker: Well, that is exactly my point, then you are out of Court.

You do not belong here.

Chief Justice Warren E. Burger: In other words, is there an adequate state ground for the decision of the Supreme Court of Ohio which you challenge?

Mr. Herbert M. Jacobson: No, we are challenging the application of the Fifth Amendment to the United States.

Unknown Speaker: Is there also not a state ground which reached the same result put in another way?

Mr. Herbert M. Jacobson: Well it reached under Section 10 Article 1 of Ohio --

Chief Justice Warren E. Burger: Well, is that not a --

Mr. Herbert M. Jacobson: Yes, Mr. Chief Justice?

Chief Justice Warren E. Burger: -- is that not an adequate state ground?

Mr. Herbert M. Jacobson: No, in my opinion it is not because it makes the state and agreed party for purposes of --

Unknown Speaker: For purposes of duty or the Supreme Court of Ohio to enforce and apply the Ohio Constitution?

Mr. Herbert M. Jacobson: Of course it is their duty to apply that.

Unknown Speaker: They applied it here, did they not?

Mr. Herbert M. Jacobson: They applied it and also under the grounds of the Fifth.

Chief Justice Warren E. Burger: They did apply it?

Mr. Herbert M. Jacobson: Yes.

Chief Justice Warren E. Burger: And concluded that under the Ohio Constitution, this was the proper result as well as under the Federal Constitution?

Mr. Herbert M. Jacobson: Yes, but we are also going under the jurisdictional question as issued in Oregon versus Hass which indicates that the State is an agreed party for the purposes of review to this Court.

Justice William H. Rehnquist: But only if a Federal question, if it we were to decide in your favor on the Federal question and say, no Miranda does not require this and send this case back to the Supreme Court of Ohio, your response to Mr. Justice Brennan’s question suggest to me that the Supreme Court of Ohio would say, well, we were wrong on that one but we are the final judges of the Supreme Court of Ohio Constitution and the conviction is nonetheless reverse.

Mr. Herbert M. Jacobson: I hold that we are here rightfully under the Oregon case.

We are here rightfully under the fact that the Supreme Court of Ohio stated that it was also a violation of the Fifth Amendment of the United States and also under the Due Process Clause of the Fourteenth which we claimed.

Unknown Speaker: (Inaudible) Did the Court of Ohio felt compelled to construe its own constitution the same as the Federal and that the Federal cases forced them to construe their constitution this way?

I do not see any evidence that has been into that effect.

Just as Justice Rehnquist said, if we reversed here, it would still be standing the judgment of the Ohio Court that this procedure violated the Ohio Constitution.

We have no power to overturn that.

That judgment has already been entered.

That judgment is not here.

Mr. Herbert M. Jacobson: Well, U.S. versus Deaton also indicated that they indicated in their opinion and “United States versus Deaton certiorari was denied but it said that squarely confronts the precise question” and there there held that the Miranda warnings having not been given they predetermined in deciding the Deaton application they decided that--

Unknown Speaker: Do not feel too badly we are the ones who granted the petition for certiorari.

Mr. Herbert M. Jacobson: Yes.

Unknown Speaker: And maybe may I suggest that perhaps this is not as simple as some of us might have initially thought.

My brother Brennan read you that first paragraph, and particularly the last clause of it.

But then the very next paragraph says, the opinion of the Court of Appeals and the brief of Appellees cite cases from other jurisdictions which have considered this question.

Now how possibly could other jurisdictions have considered the question of the validity of what happened here under the Ohio Constitution.

Mr. Herbert M. Jacobson: They could not Your Honor.

It has to be under the Fifth Amendment to the U.S. Constitution.

Unknown Speaker: (Inaudible) Supreme Court to tell us whether they rested that on the state constitution?

Justice William H. Rehnquist: Well, you presumably have a number of points to make and whatever disposition the Court makes of the matter ultimately, If I were in your position, I do not believe I want to be in the position of voluntarily surrendering it.

Mr. Herbert M. Jacobson: Well, I am not Your Honor.

We feel that we are rightfully here.

Justice William H. Rehnquist: To be granted certiorari?

Mr. Herbert M. Jacobson: That is right.

Justice William H. Rehnquist: We said over here?

Mr. Herbert M. Jacobson: Yes.

Unknown Speaker: Unanimously.

Justice Thurgood Marshall: The only problem I want from you is one case that you have to support a case of this Court.

Mr. Herbert M. Jacobson: Well, US versus Deaton indicated that what was a Federal question.

Justice Thurgood Marshall: Federal question as to whether it is on a state end, Federal ground?

Mr. Herbert M. Jacobson: No, that it was only federal because backs that up by holding that the state is a proper agreed party.

Justice Thurgood Marshall: Well, I want the case.

Mr. Herbert M. Jacobson: It is Oregon versus Hass.

That is 95 Supreme Court 1215 cited in 75.

Justice William H. Rehnquist: But that was in the context of contention that if a State Court ruled against the state, the state had no right to come to this Court even to assert that the State Court had been wrong on a Federal ground.

The suggestion here made is that the State Court did rule against you just on the Federal ground but also on a state ground.

Mr. Herbert M. Jacobson: Well, all this Supreme Court of Ohio did was to cite Federal law and based on Federal law is why they came to that conclusion, and that is so indicated in Deaton. Deaton is a Federal case and that is the very case upon which they rested the basis and foundation of their reversal.

Unknown Speaker: Let me ask you this Mr. Jacobson.

We confused you and ourselves sufficiently already, so would you leave that a little bit?

I am familiar with the Syllabus Rule in Ohio and I checked the Ohio State reports and find that the syllabus has the footnote, the head note as reprinted on page 13, Appendix A of the petition is precisely the syllabus as appears in the Ohio State Reports.

That is the law of the case.

That is the law under Ohio.

The opinion is just something extra.

There is not a word of the state or Federal Constitution in that and indeed in the italicized language above, this is said to be the law of criminal law and of evidence not constitutional law at all.

But the significance if any, as that has.

Mr. Herbert M. Jacobson: My only answer is that the state then so ordered by the accused to his parole officer became the vital issue in the case under the Fifth Amendment upon which Miranda is wholly based.

Chief Justice Warren E. Burger: And it would appear that the man who wrote the syllabus and the judge who wrote the opinion did not talk to each other very much about this case.

They are the same people.

They are the same man unless it has changed since my father was a member of that court.[Laughter]

Mr. Herbert M. Jacobson: Well, the Supreme Court of Ohio in making its ruling in which they did reverse, indicated in their finding that there was an inherent compulsion in the parole officer-parolee relationship.

Our feel and position is that we do not believe that this is to be consonant with the Fifth Amendment principles and that is the reason we petitioned for the writ through this Court and that is the basis in my judgment upon which it was granted.

Now, basically, one of the questions involved here is whether the principle of Miranda under the Fifth Amendment to the Federal Constitution should be extended or not.

Now, it was Miranda itself that made applicable under the Fifth Amendment to the area of confessions obtained at a police station.

And this had formally always been an area where the reliability of confessions and the principle of voluntariness as developed by this Court, were fashioned under the Due Process of the Fourteenth Amendment.

The Fifth Amendment speaks of compulsion and the witness may not be compelled to testify against themselves and that would apply to the area of the Courtroom.

So when Miranda came out and said that to circumvent this compulsion idea as a necessary component for the usage of the Fifth that the atmosphere was inherently compulsory and therefore the Miranda warnings were developed in the famous case of Miranda versus Arizona and that automatically now creates compulsion when these statements are not given.

So, it takes statements which have been obtained from an accused, a statement which is purely voluntary, a statement which is reliable and truthful and stands the test of Due Process under the Fourteenth Amendment, under the theory of voluntariness.

It takes it out of that area of the Fourteenth and places squarely under the Fifth, because Miranda says so and I feel that this is really an arbitrary artificial test.

To say that just because Miranda is not cited or there is a failure to give the full panoply of rights, which otherwise would be a voluntary statement without Miranda and now it becomes a compulsory statement, compelled by the accused to be made just merely because of the failure of given the warnings.

I am re-arguing Miranda because I think the test there is that as such that I will tie it in in later goes into -- Miranda first took it out of Courtroom into the jail house, where statements are made.

They then have indicated our Supreme Court of Ohio that we are now taking it out of the jail house and we are putting it into the area of the parole officer-parolee relationship and that we are in a new area --

Unknown Speaker: The interrogation here was in the jail house, was it not?

Mr. Herbert M. Jacobson: The interrogation was in the jail house.

Unknown Speaker: And it was about a crime.

It was about a robbery.

Mr. Herbert M. Jacobson: That is right.

Unknown Speaker: And suppose that immediately after the parole officer left, a tax investigator showed up and wanted to talk to him about some tax crime of his and he interrogated him without any Miranda Warnings and then what he said was offered against him in a tax prosecution.

Now that is Mathis, is it not?

Mr. Herbert M. Jacobson: Pardon me.

Unknown Speaker: I suppose you would argue well, he had been given Miranda Warnings once and that is enough.

No matter who was interrogating him?

That is one of your arguments is it not?

Mr. Herbert M. Jacobson: I believe in that case, the Internal Revenue agent went to the penitentiary and talked to the individual then.

Unknown Speaker: He went to where he was in custody.

That is no question.

He was under restrain.

Mr. Herbert M. Jacobson: Yes.

But the point is that an Internal Revenue agent is still one who was trying to seek out, trying to find where fraud may be involved, trying to see whether or not he can file charges.

He acts in the same capacity as a policeman does.

Unknown Speaker: Well yes but this parole officer is the one who asked this man about the robbery.

It was not any volunteered statement.

Mr. Herbert M. Jacobson: He asked him his question about the robbery.

They had a conversation and --

Unknown Speaker: Well but he asked him about the robbery did he not?

Mr. Herbert M. Jacobson: Yes, that is right and we say that he was not --

Unknown Speaker: And he told somebody else what the answers were and namely the prosecution and they put him on a stand.

Mr. Herbert M. Jacobson: That is right.

Unknown Speaker: As the record show, whether Sykes knew at the time of this interview with the parolees that he was likely to be a witness in the case?

Mr. Herbert M. Jacobson: Not at that particular time, no.

Unknown Speaker: Does the record show whether Sykes had customarily testified in cases involving his interviews with his particular parolees?

Mr. Herbert M. Jacobson: No, he did not.

This was his first exposure as a witness in criminal matters, first exposure being called in to testify in any of his work as a parole officer.

He was subpoenaed just hours before he testified.

Justice Thurgood Marshall: Is that in the record, that this is the first time he ever testified?

Mr. Herbert M. Jacobson: Yes, you will find that in our appendix.

And it further indicates that he was just notified hours by subpoena before he took the stand.

This was an unusual incident.

Unknown Speaker: (Inaudible) What the respondent said to Sykes, how did the prosecution ever know?

Mr. Herbert M. Jacobson: The statement originally given by the respondent to the police officials.

Justice Thurgood Marshall: What did parole do?

Mr. Herbert M. Jacobson: It was later suppressed.

Unknown Speaker: well, I understand that, but how did they know when he said there was a parole officer?

How did the prosecution know what he said to his parole officer on the second visit?

Mr. Herbert M. Jacobson: The parole officer had indicated that later.

He was one of the officials at the county jail.

Unknown Speaker: What for?

Mr. Herbert M. Jacobson: He just said he had a talk with him and he indicated the he had admitted the offense and later when the suppression statement was --

Unknown Speaker: Well, then what is the doubt about what would happen then, when he said that about being a witness?

Mr. Herbert M. Jacobson: Well they did not indicate at that time that we are going to call him as a witness, at least the prosecution did not until the statement was suppressed.

Justice William H. Rehnquist: I supposed if the statement of the police had been admissible evidence, there would have been no need to call a parole --

Mr. Herbert M. Jacobson: That is exactly right Your Honor.

Yes, it just became a matter of necessity following the court’s ruling in suppressing the statement that had formally be given when the officers took the Miranda Warning from him and he signed the Miranda Warning indicating that he knew his rights completely and at that time then waived on.

The position, if the Supreme Court of Ohio and the position of perhaps three other states are upheld by this Court, then the question is what exactly are we going to put in the way, future parole officers-parolee relationships.

Now, here we have Miranda basically referring to a policeman, a law enforcement officer and in some states they argue that a parole officer is a law enforcement officer.

Well, we challenged that statement because parole officers are not in the field of general interrogations, in general investigations.

They are not there to put an individual into the jail.

Their job begins when the policeman’s job ends and that is the way it should be.

At that point, it is the duty of a parole officer or a probation officer to maintain a dialog with his parolee, to maintain a cordial relationship, to try to see if he can help him get back onto the road where he will stay out of the jail house in the future.

His job is to try to reform, to help this man.

Now if we say that he is a law enforcement officer and therefore come under Miranda and that every time he sees his parolee, we are going to put up a wall between them, a wall of hostility then the entire relationship, the entire area of a parole officer and a parolee is endangered.

Unknown Speaker: (Inaudible) a great deal of difference whether you call this officer a law enforcement officer or not, we know he was a parole officer; he had certain law enforcement authority.

He had the right to carry a gun under Ohio Law.

Mr. Herbert M. Jacobson: Yes.

Unknown Speaker: He has the right to arrest the parolee under Ohio Law.

He had no right to arrest non-parolees as I understand it.

Mr. Herbert M. Jacobson: That is right.

Unknown Speaker: But does it make any difference in your case?

Mr. Herbert M. Jacobson: Yes, we feel that a parole officer is separate completely from the type of work, from the background training he gets from his position, as day as to night.

We say that the fact that he is authorized to carry a weapon as you say yes.

That is given to him.

There may be occasions when his parolee could be abusive.

But if a parolee becomes abusive, I say then that the parole officer has failed somewhere and he knows that, his job is not to make use of his weapon.

His job is not to go out and see if anybody escapes that he is going to shoot them down.

That is a policeman’s job.

His job is to rehabilitate, keep the individual out of jail and not put him in.

Unknown Speaker: (Inaudible)

Mr. Herbert M. Jacobson: That is true in some of the states.

I think Kansas, Missouri, California and all that.

Unknown Speaker: (Inaudible)

Mr. Herbert M. Jacobson: It is now since the Supreme Court ruled few months back.

We also have that in the probation process, statements maybe made though no warnings are given.

This is not a novel idea that a parole officer may talk without a prior warning.

Chief Justice Warren E. Burger: Mr. Jacobson, is not the Supreme Court of Ohio, the final arbitrar of Ohio law?

What it means?

Mr. Herbert M. Jacobson: Or not where there is a violation of Federal Constitutional rights Your Honor.

Texas, Florida, if I may name a few states, South Dakota, New York, Colorado, they have all indicated that no warnings are required of parole officers.

They put them in a different field.

A parole officer goes to school with his formal training.

It is contrary to that of a policeman.

Miranda has to do with police work, police tactics.

The jail house atmosphere, the overbearance of the will, that is not true in a parole officer’s --

Justice Thurgood Marshall: Does that apply to a parole officer?

Mr. Herbert M. Jacobson: It has ruled that in reversing the Court of Appeals that Miranda applies to a parole officer, yes.

Justice Thurgood Marshall: My question is this, can the Supreme Court of Ohio say nothing more, say that this applies Miranda rulings must be given by parole officers at all time?

Mr. Herbert M. Jacobson: Oh, we say that is violative of the rights of the state as in agreed party under --

Justice Thurgood Marshall: As we interpret the constitution of Ohio, a parole officer is required to give the exact same warnings as the police officer.

Mr. Herbert M. Jacobson: No, it is based under Miranda which is the rulings of this Court.

Justice Thurgood Marshall: Why could it not say what I said?

I did not say a word about Miranda.

I said the court says, our interpretation of Ohio Law means that a parole officer must give the exact same ruling, warning as a police officer.

Mr. Herbert M. Jacobson: No, that is not true.

Unless you mentioned Miranda --

Justice Thurgood Marshall: Could Ohio say that Ohio Supreme Court say that?

Mr. Herbert M. Jacobson: The Ohio Court did not indicate –-

Justice Thurgood Marshall: Could it?

Mr. Herbert M. Jacobson: I fail to see that if had any right to say that.

Justice Thurgood Marshall: Why not?

The Supreme Court of Ohio cannot interpret its own constitution?

Mr. Herbert M. Jacobson: But its own constitution Your Honor is based upon the Fifth Amendment rights as established by the Miranda case and we cannot avoid that.

Justice Thurgood Marshall: (Inaudible) to Ohio Constitution is the Supreme Court of Ohio not you.

Chief Justice Warren E. Burger: Your time has expired Mr. Jacobson.

Thank you.

Mr. Schwarz before you get on the way, let me ask you a question.

Did you file an opposition’s petition for writ of certiorari here?

I do not have one and I --

Argument of Jack T. Schwarz

Mr. Jack T. Schwarz: I do not believe I did your Honor.

Excuse me.

Chief Justice Warren E. Burger: And in your brief you do not raise the question that Ohio has decided this case on the basis of the Ohio Constitution and I suppose that is because you are following the Ohio rule, perhaps that the syllabus is the controlling law?

Mr. Jack T. Schwarz: Mr. Chief Justice and may it please the Court.

Chief Justice Warren E. Burger: May I get an answer?

Mr. Jack T. Schwarz: Yes sir, I am going to answer that right now.

Chief Justice Warren E. Burger: All right.

Mr. Jack T. Schwarz: I believe I was appointed --

Chief Justice Warren E. Burger: I have here a copy of the brief of respondent posing writ of certiorari.

Mr. Jack T. Schwarz: I was about to say, I believe, I was appointed and then I filed a typed and Xeroxed brief but I did not file any printed type of response to that.

I did not raise the question of the fact that this case had been decided on a state basis and there was no federal question.

Chief Justice Warren E. Burger: Well, if it is on a state basis, I guess you would say that this Court has no jurisdiction, is that not so?

Mr. Jack T. Schwarz: Yes sir.

Chief Justice Warren E. Burger: We have no power I should say?

Mr. Jack T. Schwarz: Yes sir.

Chief Justice Warren E. Burger: We have no jurisdiction because we granted the writ but we do not have power to construe the Ohio Constitution, you would agree?

Mr. Jack T. Schwarz: That is correct sir.

Chief Justice Warren E. Burger: If the Court should so decide and I emphasize the 'if', that this case should be remanded to the Ohio Supreme Court under the (Inaudible) holding of this Court requiring them, requesting them to state whether they decided this on Federal or State grounds that would suit your purposes, I take it?

Mr. Jack T. Schwarz: Yes sir.

Chief Justice Warren E. Burger: You may proceed if you have anything further.

Unknown Speaker: Or if we should just dismiss the writ because we determined that it was decided on both State/Federal grounds that would suit your purposes even better, would it not?

Mr. Jack T. Schwarz: Yes sir.[Laughter]

Chief Justice Warren E. Burger: I suppose, we have the power to read the opinion and not be bound by the Ohio rule of the law of the case is the syllabus.

What do you say about that?

Mr. Jack T. Schwarz: I think this Court in determining that question has to consider the Ohio.

It is that the syllabus is the --

Unknown Speaker: We held that -- that we most recognized that the Ohio Law, that the law of the case is the syllabus, we held so, in Beck against Ohio.

Mr. Jack T. Schwarz: I might say –-

Unknown Speaker: Still it does not tell us anything on this question, does it?

It did not say a word about any Constitution, State or Federal.

Mr. Jack T. Schwarz: That is correct.

Unknown Speaker: It indicates that this is a question so far as the Ohio Supreme Court goes, the law of evidence and the law of criminal law of Ohio.

Mr. Jack T. Schwarz: Right.

Justice William H. Rehnquist: Is there an Ohio syllabus heading called constitutional law?

Mr. Jack T. Schwarz: Yes there is.[Laughter]

Mr. Jack T. Schwarz: You mean State or Federal, Your Honor?

Unknown Speaker: May I ask you this?

Mr. Jack T. Schwarz: Yes.

Unknown Speaker: I know that the Supreme Court of Ohio itself prepares the so-called syllabus.

Who prepares the italicized language above the syllabus?

If you look at the petition for writ of certiorari in this case, you turn to page 13 which is the first page of appendix A, you will see above the syllabus, italicized language.

Who composes that?

Do you know?

Mr. Jack T. Schwarz: I assume that the person who prints that in the Ohio Bar does that.

Unknown Speaker: The reporter?

Mr. Jack T. Schwarz: Yes sir.

Unknown Speaker: Or the editor?

Not the Court?

Mr. Jack T. Schwarz: The editor and not the Court.

I think the Court writes only the syllabus and the decision.

Unknown Speaker: Well, the syllabus that Court writes and then an individual Justice writes an opinion, is that right?

Mr. Jack T. Schwarz: Yes sir.

Unknown Speaker: I guess, that is the way it is.

Mr. Jack T. Schwarz: I think in this case that they were both written by the same person.

Unknown Speaker: They generally have --

Mr. Jack T. Schwarz: Thank you sir.

Just in any event that the jurisdictional question is resolved in the manner that this Court does consider the case, the chronology of the case I believe there is a little bit other than reported by the petitioner.

The respondent was in fact interrogated on June 22nd 1972 in a small police interrogation room by two detectives and by a member of the probation authority, not the parole authority but the probation authority was confronted with another alleged accomplice who had supposedly already pled guilty to this charge.

Prior to discussing the matter with the respondent, the police did in fact have him execute a Miranda Warning Form and read them to him.

It was subsequent to that, that the police or the detectives in fact obtained statements against interest from the respondent and obtained then by promises of leniency.

As the record shows, the police promised to drop some 20 charges against this individual or would not file 20 additional charges which they could not prove anyhow.

So they in effect gave him nothing for something and got the admissions.

It was not until at the time of trial when the motion suppressed was sustained at the parole officer came into the picture.

I think any discussion involving this can only go back to the Mathis case and that case indicates that any person who is one of the authorities, who may put someone in jail or who may cause criminal prosecution at a subsequent time must in fact give the warnings in the Mathis case, of course it was the tax investigator and there was a subsequent prosecution based on information gained while he was in custody.

I think the rights waiver in this case is entirely in effective in any manner and as much as it was gotten or it was used only as a tool in obtaining a confession rather than as a deterrent to person incriminating him so.

Justice William H. Rehnquist: Well, did the Supreme Court of Ohio hold that the rights waiver was ineffective for purposes of even the police interrogation or did they hold that these man statements were induced by a promise of leniency, those would be two quite different things, I would think.

Mr. Jack T. Schwarz: The Ohio Supreme Court held that the defendant operated under a promise of leniency in accordance with the Trial Court.

The Trial Court also held that.

There was a promise of leniency which made the statements to the police officers, the police detectives inadmissible.

Unknown Speaker: But they were inadmissible then not for failure to give Miranda warnings but for the misplaced promise of leniency?

Mr. Jack T. Schwarz: That is correct after the waiver was in fact signed then the promises of leniency were made and it was subsequent to that, that the parole officer made his first visit to the man who was then incarcerated in the date in jail.

Justice William H. Rehnquist: But why were not the original Miranda Warnings given by the police good enough for the parole officer’s visit?

Mr. Jack T. Schwarz: Because subsequent to that time, promises of leniency had been made to him by the police in order to obtain admissions against interest.

At that time, the promises of leniency operated to vitiate the rights waiver.

Chief Justice Warren E. Burger: What about the facts whether he knew all of what a Miranda warning would tell him?

I thought that is what Mr. Justice Rehnquist was probing at?

Mr. Jack T. Schwarz: I think the --

Chief Justice Warren E. Burger: Having had the warning, why did he need another one if he knew what it would say?

Mr. Jack T. Schwarz: Because that warning had an effect then vitiated and had been made null and void by the subsequent promises of leniency.

Chief Justice Warren E. Burger: You mean that washed it out of his mind?

Mr. Jack T. Schwarz: No sir but I think the decision in Miranda versus Arizona states that even if a lawyer were in fact arrested, he would be entitled to have these warnings read and I assume the lawyer would know his rights to have counsel and remain silent.

Justice William H. Rehnquist: But I do not see how a promise of leniency could somehow erase the effect of previous warning that you have a right to remain silent, the right to have a lawyer, I do not see how that has any connection.

Mr. Jack T. Schwarz: It is my position that the connection is in the mind of the person who has been given the promises, having already made statements against interest that he has no way of knowing what would be kept our the trial.

We will talk to this parole officer and tell him anything.

Justice William H. Rehnquist: Assume that he may have got anther set of Miranda warning under your hypothesis?

Mr. Jack T. Schwarz: Under that hypothesis.

That is only a hypo but no I do not think that is the case. Having been made the promise he would then tell this to his parole officer because the parole officer has the authority, if he does not cooperate to return him to the institution or to recommend that he be returned.

Unknown Speaker: Mr. Schwartz, returning to the Miranda issue, is it your position that whenever a parole officer interviews his parolee and he moves into questioning that relates to another crime that the per se Miranda rule applies?

Mr. Jack T. Schwarz: Yes sir.

Unknown Speaker: In other words, no question whatever as to whether or not the state may have been entirely voluntary, and not freewill under the circumstances?

Mr. Jack T. Schwarz: Yes sir, excuse me, I think in the situation it is even more important that the parole officer gave the warnings because that parolee may rely upon some confidential relationship which we all know does not exist in the law.

Unknown Speaker: It can also be your view, I take it that the parole officer was visiting the parolee in the parolee’s residence in an environment that was not normally regarded as cohesive?

Mr. Jack T. Schwarz: No sir.

No, I think it is out of the in custodial range of Miranda.

Chief Justice Warren E. Burger: Are you aware that in Ohio could parole be revoked for the failure of the parolee to cooperate with his parole officer?

Mr. Jack T. Schwarz: No sir.

Chief Justice Warren E. Burger: It could not?

Mr. Jack T. Schwarz: I do not think it could without a formal hearing and some other justification other than refusing to talk.

Chief Justice Warren E. Burger: Let us assume a formal hearing?

Mr. Jack T. Schwarz: Assuming formal hearing --

Chief Justice Warren E. Burger: Assuming formal hearing it developed that he refused to answer questions of the parole officer about the commission of criminal act while on parole and certainly in Ohio, I would assume that after a hearing, parole would be revoked on that ground, would it not?

Mr. Jack T. Schwarz: I do not think so if that case were pending and ready to go to trial.

No sir I do not think so.

Unknown Speaker: Oh! Yes, but it may be that you would say the whatever the parolee says, this parole officer may not be admissible in a separate criminal prosecution?

Mr. Jack T. Schwarz: That is correct sir.

Unknown Speaker: Let us suppose that the only thing that Sykes' testimony was used for in this case was for revocation of parole, you would not suggest, it was not admissible for that purpose would you?

Mr. Jack T. Schwarz: No sir.

Unknown Speaker: I think that is an entirely different situation.

So you are really saying that a parole officer needs to give Miranda Warnings only when he is interrogating in custody and asking him about a separate crime?

Mr. Jack T. Schwarz: Crimes other than the one for which he is on parole and at which the officer may testify.

Chief Justice Warren E. Burger: Well, is it your view that in the formal hearing on parole revocation, forget about another trial but in a formal hearing on parole revocation that the statements made by the subject to parole officer are not admissible even in the parole hearing, unless he had a Miranda warning?

Unknown Speaker: No, he said they were admissible.

Mr. Jack T. Schwarz: No, I said they would be admissible in that case.

Chief Justice Warren E. Burger: And I misunderstood your response.

Mr. Jack T. Schwarz: But not after subsequent trial for the subsequent trial.

Chief Justice Warren E. Burger: In other words the bar that you want to put up is that the man simply cannot testify in a court with reference to that trial for that particular crime?

Mr. Jack T. Schwarz: That is correct sir.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

California v. Krivda - Oral Argument

Thu, 23 Aug 2012 18:23:03 +0000

Case:

California v. Krivda

Media File:

71-651_19721010-argument.mp3

Related Transcript:

71-651_19721010-argument

Transcript:

Argument of Russell Iungerich

Chief Justice Warren E. Burger: We’ll hear arguments next in 71-651, California against Krivda and Minor.

Mr. Iungerich, you may proceed whenever you’re ready.

Mr. Russell Iungerich: Mr. Chief Justice, may it please the Court.

This case arises after the affirmance of the Trial Court judgment dismissing a criminal case after a motion to suppress had been granted in California trial’s court -- California Trial Court.

It was a People’s appeal.

The facts of the case briefly rose in this manner.

An anonymous female informant placed a telephone call to a Los Angeles police officer and informed him that two persons, named Roger and Judy were living at 1901 Nolden in Los Angeles and were engaged in narcotics activities and were also injecting Methedrine into two children living at that residence.

The officers verified that a lady named Judy Krivda was paying the utilities at that address.

By visual observation and going to that location, they saw two young children playing in the front yard.

They returned at a later date, approximately a week later, and observed several trash barrels next to the curb on the parkway awaiting pick-up by trash collectors.

They also observed trash collectors in the vicinity with a trash collection truck.

They intercepted the trash collectors and requested that the trash collectors empty the well of the trash truck and deposit these particular barrels into the well of the trash trucks, so that they would not be conglomerated with the other trash collected from the neighbors in that vicinity.

Then, a block away from the residence where the respondents, Krivda and Minor, were residing, the police examined the contents of these trash barrels within the well of the trash truck and in the contents of the trash barrels, they discovered four to six partially smoked marijuana cigarettes and other miscellaneous contraband narcotic material.

After this, the officers observed, respondent Roger Minor come from the house and retrieved the trash barrels and placed them on the front porch of the house.

At this point, the officers went to the house; they arrested respondent Minor, affected entry, conducted a further search, and ultimately arrested respondent Judith Krivda.

In this context then, two important questions arising under the Fourth and Fourteenth Amendments of the Constitution of the United States are presented here.

The first is whether Fourth Amendment protection extends to garbage in this case, which has been placed on a curb and for all intents and purposes appears to have been abandoned to the trash collector.

And secondly, whether under the circumstances of this case, the application of the exclusionary rule is constitutionally compelled.

With respect to the first issue, petitioners submit that this case is controlled by this Court’s precedents set in the cases of Hester versus United States and Abel versus United States.

In the latter case, Mr. Justice Frankfurter wrote that there is nothing unlawful in the Government’s appropriation of abandoned property.

And I submit to this Court that it is clear in the context of this case that this property was abandoned and that the respondents herein retained no further privacy interest protected by the Fourth or Fourteenth Amendment.

Under the circumstances of this case it is clear that they were acts of abandonment, first by placing the trash into the trash containers, and secondly, those -- the abandonment of the trash was further confirmed by the fact that the barrels were placed upon the curb for collection by the trash collector.

And finally, I think we can draw a further inference of an intent to abandon by the fact that the residents of the house did not attempt to intercept these trash barrels when the trashmen came to collect them or in any manner attempt to retrieve them when apparently they were within the house, since Roger Minor was later seen to emerge from the house and retrieve the trash barrels.

I think in the context of this case, it is clear that privacy was at in end that the constitution protects through the Fourth and the Fourteenth Amendment, as the Fourth is applied to the states.

Basically, the fundamental proposition that a man’s home is his castle and the things around his house are protected or when we extend privacy beyond these fundamental principles, these fundamental areas, we get into a very tenuous area, where we don’t have a privacy interest, we don’t have annexes that connects the personal Fourth Amendment rights of the individual with the property seized or the place that is ultimately searched or the material that is ultimately examined.

I think that if we look at the text of the Fourth Amendment, it speaks in the possessive that persons have the right to be secured in their houses, papers, and effects that speaks of their papers and effects and that their portion of the amendment ceases, when property is abandoned.

Justice Potter Stewart: You mean it’s no longer theirs?

Mr. Russell Iungerich: It’s no longer theirs.

That’s correct Your Honor.

Justice Potter Stewart: Well, I thought this was a possession prosecution?

Mr. Russell Iungerich: Well, I think the question of possession -- I think that was raised in the opinion of the California Supreme Court in a footnote in California versus Krivda, but, I think that if we analyze, we are dealing with two separate matters here as to whether there’s sufficient evidence to convict and whether there is probable cause for arrest.

And I would present this example to the Court, the example of a man who sees a police officer approaching and at that point he throws a bin with heroine on the ground.

The Courts have said --

Justice Potter Stewart: We see -- there are many cases like that here.

Mr. Russell Iungerich: -- that the bin with heroin -- yes.

The bin with heroin is abandoned, but no Court has ever held that the fact that the man had possessed it recently, had possessed it prior to the abandonment that that could not be used as circumstantial evidence to subsequently convict him of having had dominion and control at the prior point in time, and I think that those two fundamental questions need to be separated.

I think that the California Supreme Court’s opinion, where the footnote suggests that possibly there would not be sufficient dominion and control is inadvertent and those facts were not before the Court, and I think that it is improvident that that statement was made in the opinion.

But, I think that the two questions are wholly separate.

The question here is whether or not the police officers had the right to examine this property in the well of the trash truck and certainly these particular respondents had no fundamental right of privacy protected by the Fourth Amendment in the location, one block away from their home, inside the well of the trash truck or with respect to the matters that weren’t -- the materials that was examined, which had been abandoned by them.

And, I think there’s no question that they voluntarily relinquished all further rights or interest in that property.

Justice William J. Brennan: Would the case be any different if the barrels had been on the back porch, where the trash collectors had to go through the property across the front lawn to get them?

Mr. Russell Iungerich: I think that the case might be fundamentally different under those circumstances.

Justice William J. Brennan: Why, why?

Mr. Russell Iungerich: I think there may be a protection with the areas immediately around the house for the protection of the -- these contents.

In other words, they might --

Justice William J. Brennan: In that circumstance putting the trash in the barrel would not be abandonment?

Mr. Russell Iungerich: Well, I think it would be possibly and I think that it would show an abandonment, but I think that there we would have a conflicting situation.

In other words that it may -- the contents of the trash barrel at that point, may have even though they’re abandoned, may somehow be protected, because the trash barrel at that point is owned by the individual and it is within his backyard for example, as it was in Edwards.

I think that there may be some -- that’s not the situation we have here.

Justice Potter Stewart: That’s because of the protection given to his home.

Mr. Russell Iungerich: That would be correct.

Justice Potter Stewart: Is that correct?

Mr. Russell Iungerich: Under --

Justice Potter Stewart: And it’s adversely true if a -- something in a waste basket inside of his living room, he might have abandon it, conditionally at least, but the reason that’s protected is because his home is protected, does that connect with your point?

Mr. Russell Iungerich: That would be the way I would distinguish the case, yes Your Honor.

That would be, of course, different from the situation in Abel, where the man had vacated a hotel room and the contents were found in the waste paper basket.

There of course, there would be abandonment.

Justice Potter Stewart: That was no longer Abel’s home, because he had given up the room.

Mr. Russell Iungerich: That’s -- that is a --

Justice Potter Stewart: On the other hand, somebody’s property, I suppose, is protected even in such -- in another person’s home, isn’t that right on the Fourth Amendment, if I lend you a chattel -- have I got standing to object to an unlawful search of your home or that chattel is seized?

Mr. Russell Iungerich: Not under the Alderman decision of this Court, I don’t believe Your Honor.

I don’t believe you would have standing.

I think under California, under People’s versus --

Justice Potter Stewart: It’s my property, it’s my -- those are my effects that had been unlawfully searched for and seized.

Let’s say I lend you some guns?

Mr. Russell Iungerich: But, I think there would be a question there as to whether you could raise an objection at that point to the unlawful seizure.

In light of the fact that I think probably, the crucial distinction there would be that the -- there would nothing to indicate the fact of possession to the officer where they’re located in a different location.

I don’t know whether you would have a right of privacy there.

I could see a right of privacy, perhaps where you deposited your chattel --

Justice Potter Stewart: Well, you’ve read to us or you have quoted to us the language of the Fourth Amendment and it talks about a person’s effects and I might -- among my effects, I own three shotguns and I lend them to you to go hunting.

And they’re in your house and there’s an unlawful search of your house and an unlawful seizure of those guns, do I have a standing to object to that?

Mr. Russell Iungerich: I would not think so Your Honor, because I think there again we’ve got a -- we have a question of a -- you have -- actually under those circumstances I think it would be the question of have you assumed the risk that possibly there would be an invasion of your privacy, where you would not be there to assert your own personal rights.

Justice Potter Stewart: Well, this isn’t an invasion of my privacy.

Mr. Russell Iungerich: Well, it’s an --

Justice Potter Stewart: It’s a seizure of my effects in an unlawful search and seizure, and that’s covered by the language of the Fourth Amendment, isn’t it?

Mr. Russell Iungerich: Yes, but I think -- I don’t think that that -- that the coverage of your effects in that sense, I think there has to be some closer -- first, I think there’s -- it’s important to look in terms of the -- further of being secure in those effects, I think somehow your personal connection with the effects has to be manifest at the point to someone outside that they are your effects or that they’re likely to be the effects of someone other than the person who is in that particular dwelling and holding those particular chattels.

Now, I think that under the circumstances, a police officer, for example, would not be able to discern that they were your effects from the fact that you have lend them someone else, and under those circumstances, I think that he would be judging in -- on the basis of the reasonable probabilities involved that they belong to the person in the house and not to you.

And I think under those circumstances, I would -- I think that we might make an exception from the language of the -- as it stated in the Amendment.

I don’t know there’s an exception, but I don’t think it would be applied to that situation.

Justice Thurgood Marshall: Doesn’t -- didn’t the whole point, the other side that the man assumes that his garbage will not be turned over to the police.

Mr. Russell Iungerich: I don’t think that’s a reasonable assumption Mr. Justice Marshall?

Justice Thurgood Marshall: Why not?

Mr. Russell Iungerich: Because I think that when a man abandons property --

Justice Thurgood Marshall: Well, the police was not in the garbage business.

Mr. Russell Iungerich: Well, I don’t believe the police are in the garbage business, but on the other hand, I think the question has to be, does the man -- has the man exposed, as we speak of him as this Court has spoken of him in Katz, where he has exposed this particular material to the public, his privacy interest are in an end.

In other words --

Justice Thurgood Marshall: But I would -- well, suppose the can was covered.

Mr. Russell Iungerich: I believe the can was in this case were originally covered.

Justice Thurgood Marshall: Well, don’t you think that he would assume that nobody would get in there?

Mr. Russell Iungerich: I don’t believe so Your Honor, because it’s well-known that the garbage man himself is going to --

Justice Thurgood Marshall: Well in --

Mr. Russell Iungerich: -- actually empty those cans --

Justice Thurgood Marshall: Well, where this --

Mr. Russell Iungerich: -- possibly observe the contents.

Justice Thurgood Marshall: Well, what county this occurred in?

Mr. Russell Iungerich: It occurred in the City of Los Angeles.

Justice Thurgood Marshall: Well, how many times did the police examined garbage in Los Angeles?

Mr. Russell Iungerich: I don’t have the statistics and I was unable to locate any statistics on the number of times --

Justice Thurgood Marshall: Well, would -- I still say, couldn’t I assume that the police would not look into my garbage?

Mr. Russell Iungerich: I don’t think it’s a question of whether you can assume if the police would not look into your garbage, because I think you could also assume that there’s a likelihood that the police would not search your house with or without a warrant.

There is also a strong possibility that the police would not arrest you.

But, I don’t think that that necessarily shows that you have a reasonable expectation of privacy.

The circumstances are under --

Justice Thurgood Marshall: I don’t know if any -- there is other act of privacy than have my garbage co-mingle with a thousand other people’s garbage.

Mr. Russell Iungerich: Well, I think what that proposition ultimately leads to is that we create a constitutional sanctuary for the disposal of evidence.

In other words, if a man, for example, in changing the facts of our case at this point, but assume the police had not received the telephone call that they did, but it rather received an anonymous -- a phone call from an anonymous informant who said that the man who lived inside his house had murdered his wife.

And that they were unable to verify that, but they did see the trashcans.

And assumes further that this man had dismembered his wife and put her -- and the portions of her body in brown butcher paper inside a can, the police would then -- would under the circumstance of this case if they attempted to look at the contents in the well of the trash truck, would actually be barred by a constitutional rule to the contrary, to the position the petitioner takes in this case.

They would be barred from ever reaching that evidence and this man would be given a sanctuary for the disposal of this type of evidence and actually for the disposal of the body.

Justice Thurgood Marshall: I don’t think we can decide this case without allowing somebody to hide a dead body?

I think if you think we could.

Mr. Russell Iungerich: Well, I don’t think that the -- I don’t think that there -- that most -- well, I don’t think --

Justice Thurgood Marshall: Why didn’t the police just look into the can themselves?

Mr. Russell Iungerich: Well, I think that the police did not look in the can because they felt that perhaps if they were aware of the Edwards decision that that might violate -- well, that -- why did it -- they wanted to get it as far removed --

Justice Thurgood Marshall: (Inaudible)

Mr. Russell Iungerich: Well, I don’t think that -- there is the possibility that if it were still on the curb, there might be a chance of it being within the curtilage.

And, I think it’d be on the safe side that the officers have the cans, you know, had requested in this case that the cans be placed within the well of the trash truck where it was a clear situation.

And I think the only thing I can say in this case that they could account for that is that it was good police work rather than bad police work, in light of the decisions of this Court.

In other words, in this case, the officers tried as best they could to have the minimum possible intrusion.

And I don’t think that one -- a man expects to have a right of privacy in his garbage as a general rule.

He most -- I would think if you ask the general man on the street, actually where his garbage came to rest, he would probably tell you that he didn’t even care.

And, I don’t think that most of us are concerned about the disposition that takes place after, that we are concerned about privacy.

I think the question also as I pointed out, major credit card companies advised their cardholders to cover -- to cut the cards and to actually destroy the cards and mutilate them before they go into the garbage can.

And I think that proceeds on the inference that the public doesn’t expect privacy.

That the public expects, today, at colleges, for example, to comb over garbage, to find whether there’s recycled material, they expect the possibility of dogs or cats or nosy neighbors to look inside their trashcans and possibly scavengers on the street.

And I think under these circumstances, while there maybe a subjective expectation upon -- among some people that there is a privacy interest protected by the Fourth Amendment.

I don’t think that that is a reasonable expectation in light of the fact that the man had parted with control over this particular item of property.

He has abandoned it, and he has done, what is the classic definition of abandonment, he has thrown it away.

I think that it is one thing to say that a man’s home is his castle.

It’s another thing to say that the garbage dump is his castle.

Justice Harry A. Blackmun: But counsel let me bring you back to your concession, I think it was, a little awhile ago that if these cans were on the back porch, the situation would be different.

Mr. Russell Iungerich: Yes, Your Honor.

But I --

Justice Harry A. Blackmun: Who owns the curb on which these cans were standing?

Mr. Russell Iungerich: Well, I don’t believe it’s clear from the record in this case.

I am familiar with the rules in Los Angeles, as far as setback regulations in the county -- or the city in this case would have -- would own that property or have an easement upon the property out in front, on the parkway.

I think under the circumstances of this case however, we are removed even from the point of which the garbage was out at that point on the parkway, because the ultimate examination which took place, took place in the well of the trash truck a block away from the location.

So I think at that point, there’s no question, if there was any element of the curtilage involved here or protection of the area of the domestic economy around the house.

I think however, there’s still no question if the property was abandoned, if the police officers did look into the trashcans at that point and did retrieve something from the trashcans.

That property was abandoned property and under the holding in the Able case it would -- if it is abandoned it would not -- would be reasonable to appropriate it that these officers did --

Justice Harry A. Blackmun: Are you saying that it is not abandoned on the back porch but it is abandoned on the curb?

Mr. Russell Iungerich: I am saying that -- yes, Your Honor, I am saying that.

If we assume that the -- that that is Government land in the front, in other words --

Chief Justice Warren E. Burger: I thought you had responded to Justice Stewart by saying a -- yes, it’s abandoned even when it’s on the porch, but it’s still, in effect, in his house and therefore, protected by the explicit terms of the Constitution.

Mr. Russell Iungerich: Yes, I think I’ve made a slip of a tongue here, when I said that it was -- it is abandoned at the point it’s on the back porch, and that is my position, but there maybe some protection from the Fourth Amendment in the area around the house or connected with the house at that point.

Justice Potter Stewart: Also, I suppose, just to the factual inference, it might be more conditionally abandoned.

Sometimes people put things in the waste basket and while they’re still close to them, they decide to get them back out, yesterday’s paper for example.

And say, well we put that in the garbage can or I want to see an article in it, let’s go out and get it.

Mr. Russell Iungerich: Well, I don’t think --

Justice Potter Stewart: Perhaps if it’s put far from the house, it’s unconditional.

Mr. Russell Iungerich: I would think so, I think that would distinguish the Ward case from this case, where there was an inference, possible inference of hiding something in a can, which differentiated in.

I think that --

Justice William H. Rehnquist: Mr. Iungerich, are you going to address yourself sometime during your argument to the basis for the Supreme Court of California’s opinion as to whether it get -- did decide the case on a federal constitutional ground?

Mr. Russell Iungerich: Yes, Your Honor, I could do that now.

Justice William H. Rehnquist: Just if you’re going to -- I was hoping you would come to it sometime during your argument.

Mr. Russell Iungerich: Well, this question I think is fairly clear from the -- this goes to the argument that the respondent has made -- the certiorari has been improvidently granted, as I would understand you Mr. Justice Rehnquist.

Is that the question?

Justice William H. Rehnquist: Yes.

Mr. Russell Iungerich: Well, I think it’s clear from the opinion that they -- that the California Supreme Court rested its decision on the Fourth and Fourteenth Amendments and not upon any separate ground.

You find no mention of either Article I, Section 19 of the California Constitution, which is the search and seizure analog in the California Constitution or to the Kahan rule.

And, I think the case is just clearly set forth on the -- from the language of Mr. Justice Burke that he relied upon the Edwards and Bradley decisions which maybe ambiguous.

But, he said he relied on them only to the extent that they rely upon like principles in Katz versus United States.

And, I think there is no question from that that he was relying on federal and not state law.

So therefore --

Justice Byron R. White: This case came upon a motion to suppress, I take it.

Mr. Russell Iungerich: Well, --

Justice Byron R. White: Did it?

Mr. Russell Iungerich: It was a -- yes, Mr. Justice White.

Justice Byron R. White: By and -- is a motion in the record?

Mr. Russell Iungerich: The motion to suppress is -- the argument on the motion to suppress is not in the Appendix your Honor.

Justice Byron R. White: What is the motion, was it an oral motion, speaking motion?

Mr. Russell Iungerich: Yes it was, Your Honor.

Justice Byron R. White: Isn’t there a transcript of what kind of a motion was made?

Mr. Russell Iungerich: Yes, it was a motion to suppress --

Justice Byron R. White: On what ground?

Mr. Russell Iungerich: And, it was made on the ground that this was an unreasonable search and seizure -- there were actually --

Justice Byron R. White: Under what?

Mr. Russell Iungerich: Under the Fourth Amendment, I believe.

I haven’t got --

Justice Byron R. White: Well, don’t you think that’s rather -- don’t you think that’s rather important to know what issues were presented to the Court?

Mr. Russell Iungerich: Well, I think Your Honor, the question is --

Justice Byron R. White: But what -- and what the Court was purporting to a -- State Court might well reach the state ground first if the state ground was presented to it.

Mr. Russell Iungerich: Well, I don’t -- I don’t think that that is what Your Honor, what the opinions of this Court, Mr. Justice White, have indicated this Court looks out.

This Court has indicated that it looks to line -- to the decision of the Court itself and examines.

Justice Byron R. White: Well, (Inaudible) in the motion.

Is it around somewhere, or can you find it?

I don’t think it’s in the credit there, it’s not in the credit there, portion, as far as I know.

But is there -- there wasn’t a transcript to the proceedings lodged there?

Mr. Russell Iungerich: Yes, there was no transcript at the proceedings lodged, as far as I know with this Court.

There is a transcript of the proceedings.

Justice William H. Rehnquist: But, wouldn’t a typical motion to suppress made by a defense counsel in the Superior Court in California, raise both state federal grounds, if you’re talking about unreasonable search and seizures?

Mr. Russell Iungerich: Well, I don’t think necessarily they would.

I have heard many motions to suppress them in some California Court, and I don’t think I’ve ever heard one that specifically was argued on the basis of the California Constitution.

The reason for that is our exclusionary --

Justice Byron R. White: Well, the California Supreme Court has decided some search and seizure questions specifically under the California Constitution.

Mr. Russell Iungerich: I don’t think there has ever been a California case that’s decided expressly that the case is determined under the California constitutional article on searches and seizures.

I think that if you examine --

Justice Thurgood Marshall: Is it identical with the federal one?

Mr. Russell Iungerich: It’s identical with the federal one, Your Honor, but I don’t think there’s any case that said that specifically, the question --

Justice Thurgood Marshall: So that in this case if we rule the same way and give you all the relief you want, couldn’t California say, “Well, we’re doing on the state one.”

Mr. Russell Iungerich: I think California could well predicate it further on state grounds, but I don’t think that’s a ground for --

Justice Thurgood Marshall: And what would you win then?

Mr. Russell Iungerich: Well, under the circumstances, we would have a clear ruling that it was not required under the Federal Constitution.

I think that that’s same situation was involved in California versus Byers, which this Court reviewed, which dealt with a federal constitutional question dealing with the Fifth Amendment.

Justice William J. Brennan: Well, didn’t your Supreme Court adopt the exclusionary rule and -- before we ever apply that in Mapp, under the --

Mr. Russell Iungerich: Yes, the --

Justice William J. Brennan: -- and didn't they do it under the -- under your cons -- state constitution --

Mr. Russell Iungerich: No, they did not, Mr. Justice Brennan.

They predicated -- the rule was stated as a judicially declared rule of evidence that was not constitutionally compelled.

And in specific language of Mr. Justice Friendly in that opinion said that absent any compulsion from the Federal Constitution --

Justice William J. Brennan: Well, what about the difference between the standing rules in search and seizure cases that as announced by your Supreme Court and the federal rules?

Mr. Russell Iungerich: Yes, well most recently in the Caplan decision in 6th Cal 3rd, the California Court expressly relied, expressly stated and there’s a clear footnote in that opinion, which states that they do not reach the question of whether that standing rules required under Article 1, Section 19 of the California Constitution, they avoided the question entirely.

I don’t think the --

Justice William J. Brennan: What did they predicate it upon?

Mr. Russell Iungerich: They predicate it on the fact that they were relying on the -- that this rule had continued, since the Kahan days.

And that they did not feel that since it had been an established practice in California for such a long period of time that it should be overturned.

And, I think they distinguished in the opinion, the question of standing from a question of Fourth Amendment protection.

Justice William J. Brennan: Now -- you’re comparable Fourth Amendment provision in the California Constitution, literally tracks it, that’s not identical in phraseology with the Fourth Amendment, isn’t it?

Mr. Russell Iungerich: It has a one liner difference, they’re virtually identical.

The difference is that seizure and search rather than search and seizure.

Justice William J. Brennan: Now, you’re familiar I am sure with your Supreme Court’s opinion in the Serrano case, doesn’t involve this issue, but the tax case?

Mr. Russell Iungerich: I am familiar with the case; I am not familiar with all the facts in the record in that matter Your Honor.

Justice William J. Brennan: Now, I was thinking of the opinion, I noticed reading the opinion yesterday that while -- like this one, it’s all -- relies upon the federal constitutional decisions, decision of this Court, in reaching the conclusion to unequal protection grounds, you got to drop the footnote, which is said the question under the state constitution was raised and since the state constitution or provision is virtually the same, but we say here for the Federal Constitution goes for the state constitution.

Mr. Russell Iungerich: Well, I don’t think that that’s clear from the California decisions.

Justice William J. Brennan: In this case?

Mr. Russell Iungerich: In this case and under the search and seizure question.

And secondly, --

Justice Byron R. White: Well, could I -- could we have the -- would it be possible to get that transcript from -- or some supplement that -- indicating what the motion was?

Mr. Russell Iungerich: Yes, I certain can, Your Honor, possibly be the end of the week, since it would be --

Justice Byron R. White: Oh!

Thank, alright thank you.

Chief Justice Warren E. Burger: Well, you supply that then?

Supply a copy to your friend.

Justice William J. Brennan: Now, and again, last term in the death penalty cases, the California Supreme Court clearly rested its decision in death penalty cases on the California Constitution, and said so, didn’t it?

Mr. Russell Iungerich: Yes, it did.

Justice William J. Brennan: Well, is that the practice of that Court when it does it, to say so?

Mr. Russell Iungerich: I think it most certainly is, Your Honor.

I think that they most clearly come forward and state that they are relying on that and as the Anderson case strike --

Justice William J. Brennan: And yet, it’s only a few years ago, I can’t remember the name of the case, we had to send one back to the California Supreme Court, because we couldn’t tell, reading its opinion whether it rested on a state or a federal constitutional grounds.

And they reviewed it, and said, “Well, anyone who can read would know we rested it on state constitutional grounds, I couldn’t.”

Mr. Russell Iungerich: Well, I think we don’t have that ambiguity in this case.

I think we must be --

Justice William J. Brennan: Why don’t we?

Mr. Russell Iungerich: -- referring Mr. Justice Brennan to the Kirchner opinion, but I don’t think --

Justice William J. Brennan: Kirchner is what I am referring to in here.

Mr. Russell Iungerich: But I don’t think we have that same situation in this case, because there isn’t any ambiguity in this opinion.

And, I think the case is that --

Justice William J. Brennan: It doesn’t read -- it reads to me much as Kirchner opinion did.

Mr. Russell Iungerich: I think the difference here is that the California -- Mr. Justice Burke expressly states in this opinion that he’s relying on California law only to the extent that it is compelled by Katz in the decisions of this Court.

And, as clearly indicated in -- they could indicate some possible reference.

In the other decisions, they did mention in their prior decisions and garbage collection cases, the Edwards decision and the Bradley decision, they indicated that the case did have some emanations from the California Constitution whereas, in this case, there were none.

Chief Justice Warren E. Burger: Thank you.

Mr. Hanson.

Argument of Roger Hanson

Mr. Roger Hanson: Thank you Your Honor, Chief Justice Burger, may it please the Court.

I’ll pick up where Mr. Iungerich left off here, because I think it’s important for this Court to realize that this case, People versus Krivda was a second California garbage can decision.

The first case, People versus Edwards, 71 Cal. 2d 1096, dealt with a situation slightly different.

In Riverside County California, which is a more rural type of county, the police walled at the back fence of the home of the Edwards’, came upon their property, went into the garbage can and that garbage can was setting on the back step.

In that particular case, the California Supreme Court held 5:2, specifically stating, under Article I Section 19 of the State Constitution that it was an illegal search and seizure, also relying of course on the Fourth Amendment.

And I think in this particular case, there is no ambiguity whatsoever and I would like to call the Court’s attention to my brief, starting on Page 91, I have cited verbatim the Edwards opinion, excerpt from the Edwards’ opinion.

I’d like to simply call that to the Court’s attention on Page 92 of my brief.

It says accordingly that search was unlawful under the Fourth Amendment of the Federal Constitution, it similarly violated Article I Section 19 of the California Constitution.

The Trial Court does error in admitting the evidence found in the trashcan, People versus Edwards, 71 Cal. 2d 1096, at Pages 1104 and 1105.

Now, in the Krivda decision --

Justice William J. Brennan: And Justice Burke wrote that opinion, did he?

Mr. Roger Hanson: Yes, Justice Burke wrote that opinion and Justice Burke also wrote the Krivda opinion.

Going over to Page 93 of my brief at Page 367, the California Court said and I quote now from Krivda, “It is also clear, as in Edwards, that defendants’ reasonable expectation of privacy was violated by unreasonable government intrusion.

See People versus Edwards, supra, 71 Cal. 2d 1096, 1104-1105.

We should hesitate to encourage a practice whereby our citizens’ trashcans could be made the subject of police inspection without the protection of applying for and securing a search warrant.”

Justice William H. Rehnquist: Mr. Hanson, you contend I take it that’s patent that the Supreme Court of California relied on the state ground.

Your opposing counsel apparently contends that it’s equally plain it relied on the federal ground.

If we should be in some doubt, wouldn’t the natural thing for us to do under our presence be to remand under Minnesota versus National Tea and that line of cases?

Mr. Roger Hanson: Well, I don’t think there’s any ambiguity --

Justice William H. Rehnquist: Well, supposing we should conclude there is?

Mr. Roger Hanson: Well, I suppose --

Justice William J. Brennan: Well, that’s within Kirchner.

Mr. Roger Hanson: That’s within the decisions of this Court but I just don’t see --

Justice William J. Brennan: But isn’t it -- Mr. Hanson, that just that we did it Kirchner.

Mr. Roger Hanson: Well, I’m not familiar with Kirchner, Your Honor, I’ll be honest with the Court.

But in this particular case, there’s no question that Edwards overtly was decided on Article 1 Section 19 --

Justice William J. Brennan: Well, there’s equally no question, I gather that not as overtly at least, Krivda, the Krivda opinion makes the reference to it.

Mr. Roger Hanson: I disagree with that, because it cites the exact paginations where this decision is found, 1104 and 1105 of 71 Cal 2d 1096.

Justice William J. Brennan: I see.

Mr. Roger Hanson: I would appreciate the Court parous Pages 91, 92, 93 in my brief.

I think it’s as clear as a bell, no question about it.

Justice William J. Brennan: And that incorporates those, the very discussion of it.

Mr. Roger Hanson: Very definitely, very definitely.

Justice William J. Brennan: California Constitution.

Justice Thurgood Marshall: The oppositions, they only way they could make it clear, because they didn’t put the quotes in there.

Mr. Roger Hanson: Well, --

Justice Thurgood Marshall: It’s the only way.

Mr. Roger Hanson: I don’t see I could be --

Justice Thurgood Marshall: And, that that’s not necessary once that you cite the pages, isnt’ it your position?

Mr. Roger Hanson: That’s correct, that’s correct.

Justice Byron R. White: Could I ask you?

You made the motion apparently in the lower court?

Mr. Roger Hanson: Well, I was not trial counsel at that time.

Justice Byron R. White: Do you know -- have you read the record?

Mr. Roger Hanson: No, I haven’t.

Justice Byron R. White: You don’t know then whether the state ground was ever presented to the State Court.

Mr. Roger Hanson: No, I do not.

But it certainly was decided --

Justice Byron R. White: Let’s assume it was not.

Mr. Roger Hanson: Well, I don’t think that matters, I think it’s what the California Supreme Court decided in this case, and they decided that was illegal under the state constitution --

Justice Byron R. White: Well, I know you say, let’s -- you’re arguing that they did decide under the state constitution, and yet they didn’t say so expressly.

You say they did.

I don’t see it in there expressly, but would it make any difference in the interpretation of their decision as to whether that ground was even before the Court or not?

Mr. Roger Hanson: I don’t think so.

Not in the opinions of this Court.

I think in all of the opinions in this Court, the Court simply goes to what the State Supreme Court based their opinion on.

That’s my understanding in reading of Minnesota versus National Tea and so forth.

Now in addition, I that that the second point is it really doesn’t matter, because under this Court’s decision in Cooper versus California, which I’ve cited repletely in my brief, it doesn’t make any difference, because the State Supreme Court of California is permitted, as far as this Court goes, to provide more stringent Fourth Amendment Protection and this Court is mandating under Federal Constitution.

And, I think impliedly, impliedly the California Supreme Court has given protection to the domestic garbage can.

Now, I am familiar with the fact that the Supreme Court of Wyoming and the Supreme Court of Oregon and several of the lower federal courts have not gone along with protection of domestic garbage cans, but that is not immaterial, because I think that Cooper versus California stands as authority for the fact that a state Supreme Court can give more rigid Fourth Amendment protection to its citizens if it wishes too.

Justice William H. Rehnquist: But isn’t that just the situation that obtained in Kirchner and obtained in Minnesota versus National Tea, this Court didn’t question the fact that the state could afford broader protection than the Federal Constitution, but we felt it was unclear, whether or not the state had felt compelled by the Federal Constitution or was acting under it’s own edges.

Mr. Roger Hanson: Well, all I can again certify to this Court is that in the Krivda opinion, it’s cited specifically, Pages 1104 and 1105 of the Edwards decision, which was very explicit on Article 1 or Section 1, Article XIX of California Constitution.

Now, while it did not say we are going beyond the Federal Constitution -- I agree to that.

It did not say that in this opinion, we’re going beyond what the Federal Constitution requires in giving protection to this garbage can.

Certainly impliedly, that’s what happened in this particular case.

The California Supreme Court I think is a very erudite court.

If the courts study these things very closely, it is probably the leading State Supreme in United States.

And I think that these cases were very thoroughly studied by that court and it gave this protection.

Now, one thing I think that is very important in this decision is there has always been, from the point of view of the State of California that this property was abandoned.

Now it’d be my contention, if it please the Court that the concept of abandoned property deals with not federal matters, it deals with what the State Supreme Courts decide -- constitutes abandonment in the State of California.

Now, my opponent has cited in his brief, certain law review articles.

He cited the law of the State of New York, but the question is what is law of the State of California concerned with abandonment?

I think first of all we got to say that anybody that really overtly places contraband in the trashcan or deals with contraband as vitally concerned with what happens to that property.

This is after all a prosecution for a possession, and if it’s a prosecution for possession, the people are deemed to still have some type of possessory interest in this particular problem.

Justice Potter Stewart: Well, I thought the theory was only that it was circumstantial evidence of the fact that they did have possession.

Mr. Roger Hanson: Well, surely that’s correct.

Justice Potter Stewart: Not that they still possessed it when it was in the garbage can.

Mr. Roger Hanson: All right, very well, but the question is, are they concerned as to what happens to it and who thereafter may get a hold of it?

And in our Supreme Court decision of People versus Erwin, which is the 1 Cal 3d. 423 opinion, the Supreme Court of California again says the following, “Abandonment is defined as a voluntary giving up of the thing by the owner, because he no longer desires to possess it or to assert any right or dominion over it.”

And now, the important thing, “And as entirely indifferent as to what may be come off it or as to -- or as to who may thereafter possess it.”

And, I would suggest to this Court that if in fact we have a bona fide dealing in contraband, anybody that does that, you’re dealing in cocaine, you’re dealing in heroin, I deal with these people all the time out in California in defending them.

They’re vitally concerned with what happens to it and so under the strict definition of abandonment, it is not been abandoned as defined by the California Supreme Court and that is not, I would suggest to this Court a constitutionally issue, which this Court may take a look at.

Question is what is our State Supreme Court said about it, I say that they have said that it is not abandoned in this particular case.

Now, further more the decisions of the California Supreme Court again in the field of search and seizure in our Marshall decision of 69 Cal 2d 51 and then our McGrew decision, 1 Cal 3d. 404, there is language in those decisions as specifically preclude the going into close opaque containers without a search warrant.

That does not confide the containers in the home, there’s a (Inaudible) decisions, McGrew Abt, so forth in 1 Cal 3d., which proscribed going in to close containers at airports.

So, we have a closed garbage can here.

Not only do we have a closed garbage can, but within that closed garbage can, we have closed opaque brown bags.

And they could not have gone in those bags without violating the California law, without getting a search warrant.

Now, the fact that they didn’t do that, of course, is because the garbage hollers employed the police, as the police -- the garbage hollers as police agents, told them exactly what to do, intercept the truck a block away from the house, go pick the stuff up, make sure the well of the truck is cleaned out so there’s no commingling, take it a block away.

They directed everything they did and it’s my contention that these garbage hollers became police agents for the purpose of this particular pick up.

Justice William H. Rehnquist: I think Mr. Hanson the Supreme Court of California used the word requested, didn’t it, when it spoke of the context between the police and the garbage hollers?

Mr. Roger Hanson: Well, I don’t know, I’m sure that they probably requested, and they requested or commanded or demanded, there’s something other than -- I suppose it was a friendly confrontation, I don’t know exactly how it --

Justice William H. Rehnquist: Do you think there’s no difference between the word commanded and requested?

Mr. Roger Hanson: Oh!

I’m sure there is, usually a difference between requested, but you know, garbage hollers are in generally not the most educated people and they -- I think they’re more compliant with request of police.

I don’t think they questioned anything that they want them to do.

They went ahead and did this.

And I think under the general Stoner versus California and Chapman versus United States rationale, it is expected that a maid will clean your room, but it is not expected she’s going to lead them on a tour of your possessions.

When you rent a house, it’s expected that the man may come in to inspect the premises, but it’s not expected that he’s going to bring the revenue agency in under Chapman versus United States.

I think that is axiomatic in this particular case.

It is not expected that these garbage hollers are going to comply with the request of the police department.

Now, furthermore --

Justice Harry A. Blackmun: Mr. Hanson let me interrupt you there.

Your opposition to the Attorney General in his reply brief contends that a City of Los Angeles Ordinance exempts city officers, such as policemen, from the general prohibitions against tampering with garbage containers.

Do you agree with that interpretation of that ordinance?

Mr. Roger Hanson: No, definitely not.

I think the Court’s attention must be referred to Section 6603 of the City Code and Section 6629 of the City Code.

Now, if -- it’d be contended that officers are exempted, they’re certainly employees of the city.

And Section 6629 says this, it says “No employee of this City shall remove or dispose of for said employees benefit or use any of the contents of any vessel, tankers, receptacle used for the collection, removal or disposal of rubbish.”

So, I think -- I -- first of all I’m not conceding whatsoever that an officer in the context of view there is a police officer.

I think that’s a garbage officer of some nature.

There must be a chain of command in the garbage business also.

And I am not suggesting that this in any way permits police officers to go after this.

I don’t think it does at all.

In any way they’re employees and so Section 6629 does not permit them to do this.

While in general, I admit the rationale of this Court in Abel, but nonetheless in California versus Krivda, we have a very heavy regulation on California garbage, very heavily regulated and it just absolutely precludes this particular behavior that took place in this case.

And, not only does the municipal county ordinance is precluded but they taken in context with the Ninth and Tenth Amendment to U.S. Constitution, suggest to me that where the states have not overtly legislated and/or the Federal Government has not overtly legislated then it is up to the citizens, acting through their municipalities, to legislate and these statutes actually absolutely preclude this type of confiscation of the garbage can.

Now, those are the threshold of the laws and I would like now to address myself to the merits of the case.

Anybody that says in recognizing the certified question, and certified question came up to this Court was whether there is -- whether anybody who takes contraband and puts it an a garbage can and puts to that curb side, exhibits a reasonable expectation of privacy that that garbage will not be viewed in the well or the bin of the garbage truck some distance away from pick up and prior to commingling.

Now, I have a little garbage truck here which I purchased over in Virginia yesterday and this little garbage truck is one exactly like that we have in California and to ensure that the Court understand what California garbage trucks look like, this is what they talk about when they say the well of the truck, this is the well of the truck back here.

And characteristically, these trucks move along the streets in California and they have a very heavy schedule to meet.

A lot of homes to meet and there will be a man standing on the back of this truck and a man driving the truck, and they will drive up to a home, this man will jump off at the back of the truck, he will take the cans, he will append them into the well.

He will hit a hydraulic button and within 2 or 3 seconds, it is elevated into the truck.

Within 2 or 3 seconds, it is elevated into the truck.

There’s absolutely no opportunity, no practical opportunity at all for this to be viewed in the well of the truck.

This is a very smelly place, it is covered with dust, when they dump these trucks, these cans in here, there is an emanation of dust that comes out of the end of it, I would suggest to this Court that it is not practically nor reasonably to expect that anybody is going to view what’s going on in the well of that truck, that button is hit, it is gone in three seconds and actually, even though this model of the truck has a top of it gone, the California garbage truck is closed there and this garbage disappears into that truck within the twinkling of an eye and nobody ever sees it again, until it is out to the dump.

And, in California, one of the big uses of garbage is for landfills.

We have a lot of mountains out there, and they are dumped in mountains and they are covered over with bulldozers.

Now, I have a movie with me and if the Court would take a look at it before this court decides this case.

It is two minutes and 57 seconds, it is a totally unrehearsed movie, which is in color in 16 millimeter and it shows California garbage, I --

Justice William J. Brennan: (Voice Overlap) seen?

Mr. Roger Hanson: What’s that?

No, it’s not but I presumed there’s a -- [Laughter]

-- because of the cases that are coming up.

Chief Justice Warren E. Burger: Perhaps more important, is it in the record?

Mr. Roger Hanson: No, it’s not but nonetheless it is argument at least.

It is argument at least and it is factual, I represent to the Court that it is not posed; it is very correctly done; it is done by myself supervisingly taking the pictures of how they actually pick up garbage.

It shows the California’s smog levels, there’s a demarcation in California of a brown bell of smog in blue sky.

And that is another reason why this has to be done in California.

Justice Thurgood Marshall: Did the respondents in this case have anything to do with that picture?

Mr. Roger Hanson: Is what?

Justice Thurgood Marshall: The respondents in this case?

Mr. Roger Hanson: No, they did -- the respondents, no they did not.

Justice Thurgood Marshall: Well, how will that help their position in this case?

Mr. Roger Hanson: Well, because it’s very typical how it’s done Mr. Justice Marshall.

Justice Thurgood Marshall: Well, I mean if he thinks its private, does that help him or not?

Mr. Roger Hanson: Well, it shows, the question again --

Justice Thurgood Marshall: Does your position that this man knew that all these things have in the garbage?

Mr. Roger Hanson: If he is at all that alert, he knows that this is what happens to him, because I’ve seen many --

Justice Thurgood Marshall: Well, then why do you need the movie?

Mr. Roger Hanson: What’s that?

Justice Thurgood Marshall: Why do you need the movie?

Mr. Roger Hanson: Well, I thought it would help the Court to confirm my contentions as to how California garbage is picked up.

If the Court will view it I’d appreciate it.

One of the things that I think is very important here is really the California said is it operates under a contract of adhesion early.

He cannot get rid of the garbage in any other way.

You can’t burn California garbage.

You can’t do anything like that, because of the smog levels out there.

The only thing you can do if you want to get rid of a drawl, just carry it out to the curb side.

You can’t leave it behind your house, because if you do, they won’t pick it up.

You maybe be able to do that in some of the small towns I don’t know, but in the City of Los Angeles, the only way you can get rid of it and it’s covered by these statutes in my brief, is to carry it out to the curb side.

And, the California Supreme Court, even in its dissent, in its three-man dissent in the Krivda case, recognized the right of privacy in that can when it was on the back step of the home.

But, somehow and I contend this is an intellectual non sequitur, they seem to lose three votes when it was carried out to the curb, and I don’t understand that because this is what people have to do.

If you did not do that you would have the home being engulfed in garbage because you never get rid of it.

You have to carry it out to the curb and get rid of it.

And, they’re doing -- my clients were doing only what they had to do in order to get rid of this.

We have a very regulated situation in California, and I don’t think that these people can be held to have given up any right of privacy simply because they had to carry this can out to the curb side in order to get rid of it.

And so therefore in my opinion there is no distinguishment between the Edwards case and the Krivda case in the State of California.

Now, I think also of great importance is the following: Is there a possibility of detecting contraband under these circumstances.

I defend in California a lot of drug cases.

I have never seen, never seen at all even licensed chemist who are able to detect contraband without doing analysis and I’m talking here about marijuana and pills and so forth.

You can’t tell the majority of white pills are morphine tablets.

So therefore you have a university trained chemist who has to make quite extensive test to detect contraband and therefore I would contend that the average person who would have a split second chance to view contraband in the well of this garbage truck would have no chance, no chance at all to detect it whatsoever.

He could not possibly detect it.

Justice Lewis F. Powell: You say that garbage ultimately goes in Los Angeles?

Mr. Roger Hanson: It goes to a landfill Mr. Justice Powell, where it’s plowed over by bulldozers to make landfill --

Justice Lewis F. Powell: And frequently is it plowed over by bulldozers?

Mr. Roger Hanson: All the time, they’re out there all the time.

When those trucks bring it out they are constantly out there, weaving back and forth on the land and disposing of it.

Justice Lewis F. Powell: There’s no incineration, are they?

Mr. Roger Hanson: In general, well, there maybe, yes, there maybe, but that’s in this movie also.

I’d like to have the Court take a look at it.

This is an unrehearsed movie of the California dumps, showing where this, what happens in this stuff?

Justice Thurgood Marshall: Did the lower court see that movie?

Mr. Roger Hanson: No they didn’t, I have made this movie two weeks --

Justice Thurgood Marshall: Did anybody see it before now?

Mr. Roger Hanson: No, nobody had seen it.

But I again offer to this Court for the realization as to what takes place in California garbage dumps.

Justice Thurgood Marshall: What if your client is getting rid of this marijuana, do you equate that to abandonment?

Mr. Roger Hanson: No, I don’t.

I equate this to a requirement as to how you have to dispose of something, it’s not --

Justice Thurgood Marshall: What’s the difference between getting rid of something and abandonment?

Mr. Roger Hanson: Well, under the general idea of abandonment as far as I am concerned, abandonment would be just some free will, free desire to get rid of something.

Here, you have a very regulated way that you have to do it.

You’re disposing of something pursuant to statute, pursuant to statute.

You can’t do it any other way in California, unless you want to get into the business yourself --

Justice Thurgood Marshall: You don’t know of any other way to get rid of a marijuana but than to put it in the garbage?

Mr. Roger Hanson: Yes, I think you could flush that down the toilet or some people do who are kind of hard press for it, they’ll roll it over again in a new cigarette, I think you could do that.

But, I don’t know, I had never fooled with it myself, other than represent these people but I am told that they will recycle their marijuana into new cigarettes when it gets down to the end.

Now, one thing I think that we got to distinguish here is -- I am sure the State of California is probably not suggesting widespread indiscriminate searching of garbage cans.

If they are, I would contend, as I have in my brief, if this is a mathematical impossibility.

It’s a statistic impossibility that there is just no possibility that this is going to be successful when you talk about the number of police that can be devoted to it versus number of garbage cans.

So therefore, we have to talk about a situation where there’s some type of information, some type of premonition that a can contains contraband and in those particular circumstances, I contend that the search warrant is a preferred way, Aguilar versus Texas, Spinelli versus United States, Whiteley versus Warden of Wyoming State Prison, and all the various decisions of this Court which actually require -- and I suggest also Coolidge versus New Hampshire.

As I read Coolidge in the 91 Supreme Court addition 2022 at Page 2047, this Court has restricted the particular ways of seizing things anymore to either a search warrant or its incident to a lawful arrest.

And so, instead of trying to muddy up the waters, instead of trying to complicate the deal with search and seizure, this Court has simplified it by curtailing the means by which somebody can seize something.

So, I think there’s just a host of decisions going to the merits of the case, going to the law of California, going to the decision of the California Supreme Court, invoking Article 1 Section 19 in the Edwards case and incorporating that to Krivda case would just absolutely preclude this type of thing from happening.

And I think the decision of this Court should be nine to nothing affirming the opinion of the California Supreme Court in this particular case.

I just can’t see how it can be anything else under the various things that have happened --

Justice Potter Stewart: Well, if it’s -- if the opinion of Supreme Court of California rests on a state law ground, we wouldn’t affirm it, would we?

Mr. Roger Hanson: You mean --

Justice Potter Stewart: None of my business?

Mr. Roger Hanson: Dismiss it for want to --

Justice Potter Stewart: We wouldn’t affirm it, we wouldn’t reverse it, that’s matter for the state.

Mr. Roger Hanson: Well, that maybe true.

Justice Potter Stewart: Jankovic -- you cite the Jankovic case --

Mr. Roger Hanson: Indiana Toll Road.

Justice Potter Stewart: -- in your brief, we dismissed it, didn’t we?

Mr. Roger Hanson: Right, right.

Now, I think there’s one other area I want to touch on in the closing minutes here.

I think there’s a very pragmatic situation in this particular case.

I think that if this Court would at all sanction a search of garbage cans, it is an avenue, if you open up numerous areas of fraud, because a garbage can as this Court I think is almost a judicial notice can be loaded by somebody who wants to get rid of somebody else.

If I want to get rid of my neighbor, I’ll go and deposit marijuana in the can, I make an anonymous phone call to the police department, I say, “Mr. Jones at 123 Main street has marijuana in the garbage can,” Zoom! They come over, they descend on the can, they search it, they find marijuana and he is off to the poky.

And if you don’t think it’s difficult to defend these drug cases in California, well you got another thing that coming, because I did -- do it all day and it’s very emotionally laden and it’s very difficult to get these people off, if they’re caught in anyway with narcotics before a jury.

They think that they’re guilty, there’s no way you can do it, and I would suggest that if this Court any way gives any credence to the desire to the California Attorney General, we have some problems, we have some severe problems in this particular case.

I think also, I think also we have the final threshold question as to the right of privacy of people to live their lives, to dispose of their life’s tracings if might be birth control, residue, or if it might be a particular liquor that they want to use or something I think that it is a severe encroachment upon the right of privacy, if this Court would in any way suggest that the California Police should be given the right to indiscriminately search these cans.

Citing Griswold versus Connecticut, I think that the birth control privacy, the bedroom should be extended to the -- getting rid of that birth control material out into the garbage can.

And, also I think there is a severe equal protection problem, because if this whole matter depends on where that can might be setting or whether you might be living in a rural area, residential area, I think that -- I think it’s a refinement that we don’t want to go into.

Many people live in huge apartment houses where there is a commingling in the -- in a huge trashcan.

There you don’t have the problem, because it’s initially commingled, but if you don’t have the situation where you’re living under circumstances like that or you’re living in a private home, of course, then you have to comply with the regulations of the County of Los Angeles and the City of Los Angeles in how you get rid of these materials.

Justice Potter Stewart: You know the whole Fourth Amendment, its applicability, depends inevitably upon sometimes very subtle nuisances and differentiation of facts, doesn’t it?

Mr. Roger Hanson: Certainly it does, I recognize this, I recognize this.

Now, no one has said in argument yet about the general attack on Matt versus Ohio, but in the couple of minutes I have left, assuming my opponent is going to allude to it in his closing arguments.

I think that somebody of my particular educational status is not going to, in the few minutes, in any way, attempt to overcome the scholars of the last 50 years who have considered, debated, discussed, published law review article by the thousands on the exclusionary rule, I think that the State of California is now in a position where frankly there’s been an addition of four new members to this Court and the -- I think they feel that they can take a new shot of the exclusionary rule.

And I would suggest to this Court that this Court should not likely consider in a solemnest rule.

There is really no other practical way, no other practical way.

Some people may say, pursue of 42 U.S.C. 1983 Civil right suit, but I would suggest to this Court that if somebody is caught with a bunch of cocaine and it is shown to be an illegal seizure, but because you can’t exclude it, the man is convicted, he does maybe ten years, he makes $50,000 a year of selling cocaine, he brings a civil rights suit to recover $50,000 times ten years, or $500,000.

What jury in the United States would give him ten cents, a man who is dealing in cocaine, brings a civil right suit to recover money, because he had been illegally searched and seized, can anybody in their wildest imagination should suggest that man would get any money?

I don’t think so.

There really is practically no relief under 1983 of the Civil Rights Act.

Some people may suggest, well, we should discipline the police.

I don’t think this is practical, I think this has been hash and rehashed for years.

It is not a practical way of handling it.

The only way it can be done is by the -- this exclusionary rule and I think that the scholars of the last fifty years, emanating from Weeks versus United States down through Matt versus Ohio have so considered, and there just is really no other way of doing it.

If the State of California is really sincere in this, I would suggest that this Court may give some credence to a parallel type of relief, along with this exclusionary rule, to see how it works.

I think Mr. Chief Justice Burger in the Bivens versus Six Agents of the Federal Bureau of Narcotics expressed the reluctance to throw away the exclusionary rule in Illinios and alternate could be selected.

And so, I think that if there’s any credence to be given to an alternate let it go in a parallel manner to the exclusionary rule, and let’s all investigate and see what happens.

And I would suggest that the exclusionary rule would probably still be in effect, because the alternates are merely shams that they really will not work too well.

California talks about restricting it to substantial violations, and I would suggest that we’re getting into replete additional things, which are going to be more complicated, because then you are going to have got to decide where there is a reasonable or unreasonable search where it has already been held to be somewhat unreasonable.

I think you are going to have nuisances on -- nuisances on this particular thing to the point where anybody that would want it had to happen would give up in despair on it.

Even in the amicus curia briefs, the reasons for doing away with it, the Americans for effective law enforcement presents statistics that show that the police are doing so well with an 84%, 6 out of 7 cases, the attack on the search and seizure has been upheld as being correct.

On the other hand, California in this brief says, “Well, the thing is so complicated our police can’t understand it.”

I think that and that alone is reason for disinterested, neutral magistrate, who has had training in law to set and decide if it’s legal or illegal.

Illinois says and I’d hesitate to admit it that their police are lying so badly.

Every time they get caught and they’re challenged by a judge, where they would be prone to lying in order to get the evidence in.

Well, I would suggest the State of Illinois is a different fact, that’s our admission that they ought to try and curtail their policemen lying and go on the same rule that everybody else goes, a judge is suppose to decide this.

Chief Justice Warren E. Burger: Mr. Hanson, I think your time is up and you were appointed by this Court, you accepted the appointment and on behalf of the Court, we express our appreciation to you.

Mr. Roger Hanson: Thank you Mr. Chief Justice, it’s a pleasure to do it.

Chief Justice Warren E. Burger: Case is submitted.

Featured:

Aldrich v. Aldrich - Oral Argument

Wed, 16 Jan 2013 22:48:52 +0000

Case:

Aldrich v. Aldrich

Media File:

55_19631024-argument

Related Transcript:

55_19631024-argument

Transcript:

Argument of Herman D. Rollins

Chief Justice Earl Warren: Number 55, Marguerite Loretta Aldrich versus William T. Aldrich, et al.

Mr. Rollins.

Mr. Herman D. Rollins: Mr. Chief Justice, may it please the Court.

This case comes here on petition for a writ of certiorari granted by this Court to a plaintiff-petitioner, Loretta Aldrich.

It comes from the Supreme Court of Appeals of West Virginia.

A matter in controversy arises over the refusal of the majority of the Supreme Court of Appeals of West Virginia to give full faith and credit to a Florida divorce decree.

Briefly, these are the facts.

Loretta Aldrich and Colonel M. S. Aldrich were married in 1918.

Differences arose and they were divorced by the Circuit Court of Dade County, Florida in 1945.

The decree of divorce -- both parties appear, I would -- I should say and the defendant, Colonel Aldrich contested the case.

The decree of the court has found disposition of the matter and among other things directed that Colonel Aldrich paid to Mrs. Aldrich the amount of $250 for month alimony so long as she live and made the same lien against his estate in the event he -- of this death.

Colonel Aldrich applied for a rehearing and the alimony was reduced at $215 per month but remained just as it was.

There -- the other matters in the decree, he remained just as it had been before.

Colonel Aldrich died in May 1958.

He had kept his payments current up until his death but he prepared for death.

In this way, he transferred his property to his son, William T. Aldrich prior to his death where they had in mind the tax collector or Mrs. Aldrich, we don't know but Mrs. Aldrich was the one complaining here.

She -- Colonel Aldrich's estate was up for a settlement in the Circuit -- in the -- in Putnam County, West Virginia.

Mrs. Aldrich filed a suit there to set aside these alleged fraudulent conveyances that have been made.

When the Colonel's estate was appraised, although a wealthy man or a period had been a wealthy man, there was only $7000 appraised in his estate.

It became necessary, of course, to set aside these conveyances if the decree of divorce was to be satisfied and the court put away and have been entered in the State of Florida.

The Circuit Court of Putnam County, West Virginia dismissed our complaint on the ground that the Circuit Court, shall we say it, didn't have jurisdiction to enter a decree requiring alimony to be paid by a man's estate.

The Supreme Court of Appeals of West Virginia awarded the writ of error and then on argument by a divided court affirmed the Circuit Court of Putnam County, where we came here on a writ of certiorari.

Now, briefly, that it -- those are the facts in the case.

The Supreme Court of Appeals of West Virginia, in deciding the case and refusing to give a full faith and credit to the Florida decree, said that the Florida decree made a wrong decision in the case.

There is no dispute about the court having jurisdiction of the parties and jurisdiction of the subject matter.

But the Supreme Court of Appeals of West Virginia proceeds to review the statutes and decisions of the State of Florida and rule that the Florida court has made a wrong decision.

In doing so, the Court of West Virginia had found something like this in the decisions of the State of Florida.

"The alimony," this is the statement that often made in the Florida decree, "Alimony generally ends with the death of the husband."

Now, that doesn't necessarily mean that alimony ends with the death of the husband.

We contend that the trial court, when it goes into the facts of the case, the needs of the wife, the amount of property that the husband has and possibly the -- the fault or wrong of the parties and a lot of parties that -- the part that the wife plead in acquiring the property still has a right to adjudicate alimony and make the same lien against the husband's estate.

A court also in West Virginia cited a case of (Inaudible) in which the Supreme Court of Florida had ruled that alimony would not be paid after the death of the husband.

But in that case, there were peculiar circumstances in it.

The court of -- in Florida, and that was an appellate court only of -- gave this decision, not the Supreme Court of Florida, held that -- that the husband shows estate would be liable for a certain amount of alimony for week in the event he died before the wife.

The court also -- the trial court had awarded a permanent sum, a -- a substantial sum and that was done under a statute of -- of Florida which said that, "In any award of permanent alimony, the court shall have jurisdiction to award periodic payments or in a payment in a lump sum."

Now, the Supreme -- the court of Florida in that case had awarded a substantial lump sum to the wife and intended also to make alimony payable out of the husband's estate and -- after his death.

And the -- the court in Florida merely said this, said the wife couldn't get both if she took the lump sum, then any attempt to put alimony against the husband's estate was void.

That was the -- of course, she has no application whatsoever to our case here.

The Supreme Court of Florida -- I mean the Supreme Court of West Virginia used that to defeat Mrs. Aldrich's claim for alimony out of the husband's estate.

Now, this matter of making alimony or claim against the husband's estate is done in West Virginia.

The decisions of West Virginia, we have two decisions of West Virginia and that support that proposition.

It couldn't be said that the -- the Florida decree was repugnant to the laws of West Virginia and therefore, it wouldn't be enforced.

It was simply this.

A -- a West Virginia court undertook to review the decisions of the State of Florida, the decision of the Florida court in this particular case of Aldrich versus Aldrich and in so doing, held that -- dismissed our complaint and held that alimony would not be payable out of the husband's estate.

And consequently, the other cases -- the other matters in our case went out of the window, of course, if they had no claim for alimony, then we had no right to complain about the wrongful and fraudulent conveyances.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Herman D. Rollins: It --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Herman D. Rollins: No, it was not.

Justice Arthur J. Goldberg: It would be (Inaudible)

Mr. Herman D. Rollins: It was a contest to divorce action.

Justice Arthur J. Goldberg: And this was the adjudication by the court?

Mr. Herman D. Rollins: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Herman D. Rollins: Yes.

Justice Arthur J. Goldberg: In that case, it was never appealed (Inaudible)

Mr. Herman D. Rollins: It was never appealed.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Herman D. Rollins: But the Florida court in Johnson versus Avery said that -- that the courts of Florida could decree a permanent alimony as -- or as in make the same lien against the husband's estate by decree or by a contract.

But the Supreme Court of West Virginia (Inaudible) to disregard that.

Now, we have cited a good many cases to this Court.

Justice John M. Harlan: Can I ask you a question?

He assumed the facts or (Inaudible)

Mr. Herman D. Rollins: Still, I think that we would be entitled to prevail that it could not be attacked in West Virginia after the time for appeal had -- had expired.

In other words, we contend that when this Florida court passed on the matter having jurisdiction of the parties and under the subject matter, then the judgment of that court became as final as the judgement of God.

Justice John M. Harlan: Well, that's -- my question -- my question is assuming that under Florida law, that is not so, that a Florida decree (Inaudible) would be void, it could be a fact notwithstanding that they (Inaudible) tax collaterally of the Florida proceeding.

Mr. Herman D. Rollins: Possibly, it could.

Possibly, it could but we contend that's not a void decree and -- since the court, down there, had jurisdiction of the subject matter and of the party.

Now, a void -- a good example, we think of a void decree would be if a state court undertook to pass on a merit on matter which is exclusive within the jurisdiction of federal court.

But this was a subject which is in the jurisdiction of the Florida courts.

We have --

Justice John M. Harlan: Oh, West Virginia would not give the Florida decree any (Inaudible) if that's the Florida (Inaudible)

Mr. Herman D. Rollins: Yes, that is quite right.

But we say if the defendants in this case have a remedy at all is to go before the Florida court and complain for a modification, they can't come to West Virginia and re-litigate the matter.

Now, that is the position we're taking, whether it could have been a void decree or not but we don't say it's also a void decree.

So long as the West Virginia court had jurisdiction of the parties and of the subject -- I mean the Florida court had jurisdiction of the subject matter and all the party that it was finality.

Now, we have quoted many decisions -- put many -- have cited many decisions of this Court and of other federal courts, law of federal courts in this case.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Herman D. Rollins: I am not certain that it could.

Now, if it had -- if it can be modified in any place, could it be in the State of Florida --

Justice Arthur J. Goldberg: And then what (Inaudible)

Mr. Herman D. Rollins: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Herman D. Rollins: Yes, but that was on the rehear -- petition for rehearing which was made just a few days or few weeks at most after the final decision, and that court had jurisdiction at that time of course.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Herman D. Rollins: Possibly, it could be in Florida.

It can -- it can in West Virginia, possibly by a West Virginia decree.

Possibly, it could be in Florida, I don't know, I'm not familiar enough with the Florida laws to say but possibly could.

But if Phil Aldrich and his -- the other defendants have any right in that regard is to go to a Florida Court and not come to a West Virginia court.

Chief Justice Earl Warren: Very well.

Mr. Herman D. Rollins: Thank you.

Featured:

Dresner v. City Of Tallahassee - Oral Argument

Wed, 16 Jan 2013 22:48:29 +0000

Case:

Dresner v. City Of Tallahassee

Media File:

35_19631023-argument

Related Transcript:

35_19631023-argument

Transcript:

Argument of Howard Dixon

Mr. Howard Dixon: Mr. Chief Justice and members of the Court.

In the spring and summer of 1961 had begun a new phase in the struggle to obtain integration in the south and to arrive at a new level of dignity of mankind as we would further have it under our democracy.

On June 15th, 1961, the petitioners' news case as part of a "Freedom Ride" arrived in the respondent city, the City of Tallahassee as part of a test.

They testified that they wanted to bear witnesses as -- as ministers, rabbis and clergymen to the struggle to obtain those rights guaranteed them by the Constitution.

But first, in order to bear witness, they wanted to test transportation facilities to determine if there were facilities available on an integrated basis.

What is a test?

Legally, a test to this kind is not quite the same thing as what we mean by a legal test.

We would define it for the purposes of this case as an opportunity to determine the availability of one's constitutional rights and to do so peaceably until that right is made available.

Their first test in Tallahassee came when they arrived in a clearway to a bus terminal.

They were met by some citizens who obviously hostile and menacing to a certain degree.

They were also met by what the police department and into the police termed "adequate police protection".

Some of them tested the facilities of the bus terminal by eating in the coffee shop, testing the restroom and the waiting room.

Justice Potter Stewart: Were these petitioners of the negro race?

Mr. Howard Dixon: These petitioners are clergymen of the white and negro race, ministers and rabbis.

Justice Potter Stewart: Insofar as they are on the white race, how could they test the question of whether or not restaurants were integrated?

Mr. Howard Dixon: And -- they could test that because the south literally objects to the mixture of the races in any social situations as well as to the injection of any negroes into a social situation or into a situation that legally -- that we -- we legally we maintain is their -- by rights under the Constitution.

In short, by the -- in -- by their mixing, it is a violation with the morals and customs of the south.

Justice Potter Stewart: Well, if this was specifically addressed, I thought you told us to restaurant?

Mr. Howard Dixon: The bus terminal at this time.

Justice Potter Stewart: The bus terminal?

Mr. Howard Dixon: Yes, sir.

But however, the citizens of Tallahassee, if I may describe Tallahassee, it's a city shorts -- short distance from the Alabama border and its settlements are more of those of Montgomery, Alabama than say, Miami.

It is the city that is 475 miles distance from the most metropolitan area and retains the flavor and color of the old competitor.

In the process of testing, they -- they had arrived at the terminal's point, the City of Tallahassee and they proceeded to go to the Tallahassee terminal to take air transportation back to their homes in the north.

Some of the passengers, when arriving, confirmed their reservations and proceeded to take the plane out that was due at the airport at about 3:25 on June the 15th, 1961.

Justice Potter Stewart: What had happened in the bus terminal?

Mr. Howard Dixon: Another thing Your Honor, they have been allowed to test and they --

Justice Potter Stewart: Allowed to --

Mr. Howard Dixon: Allowed --

Justice Potter Stewart: -- test.

Mr. Howard Dixon: -- to test the facilities and they have now moved on to the airport.

They had no -- there's no -- as we've just said, that was the purpose of coming to Tallahassee.

They now have moved on to the airport to return to their homes in New York and Washington --

Justice Potter Stewart: This is the next day?

Mr. Howard Dixon: Yes -- no, sir, the same day.

Justice Potter Stewart: Same day.

Mr. Howard Dixon: Within an hour.

They arrived at the airport terminal about 1:30 p.m.

They were there at the bus terminal about 12:30.

Chief Justice Earl Warren: Were they served in any of these other -- other facilities?

Mr. Howard Dixon: They were served at the bus terminal.

However, went -- when they -- they were eight --

Chief Justice Earl Warren: Oh, I meant in the restaurant, the facilities and so forth.

Mr. Howard Dixon: Yes, sir.

At --

Chief Justice Earl Warren: They (Voice Overlap) --

Mr. Howard Dixon: -- two point they got to the airport.

The petitioners decided that as they had been adequately served so they went to the airport terminal restaurant.

And the airport terminal restaurant is an integral part of the terminal.

In that, there was only a glass wall separating it from the waiting room itself.

As they approached the door to the restaurant, they saw on the door an informally lettered sign reading "close".

Upon being -- inquiries being made by the spokesman, the manager of the restaurant advised them that they were closed for mapping up and they would reopen at 4:30.

At that point, they determined by a vote among themselves that they would cancel their reservation to enjoy a cup of coffee when the restaurant reopened at 4:30.

Justice Potter Stewart: How much group is this?

How many were they?

Mr. Howard Dixon: Ten petitioners.

Justice Potter Stewart: Ten.

Mr. Howard Dixon: They found in this terminal restaurant that there were segregated facilities, that is to say there was a room for the negroes and negro -- room for the whites and separate restrooms facilities and a separate eating facilities for negroes as opposed to whites.

However, the place in which they wished to eat was obviously the white restaurant because as they looked into the glass wall with the sign reading "close" on the door, they saw white people eating inside the restaurant.

And in -- later in the testimony, the manager of the restaurant testified that the restaurant was usually open from 6 a.m. until 11:45 in the evening.

So they waited until 4:30 and when the restaurant did not open, they sat in the waiting room until the terminal close that evening, until 11:45 p.m.

Now, during that time, they were adequately guarded by the police, the city testified to that effect.

They were a number of people outside or perhaps were just curious to see them and some of them who were hostile to the point of violence.

The city manager of Tallahassee testified that there were never anymore to three or four cars or perhaps four or five people in each of the cars outside of the terminal.

They -- at the end of the close of the day when the terminal restaurant close down, they obtained transportation back to the City of Tallahassee and lodging and in -- of course, in the meantime, they had made reservations on the plane to leave the following morning at 8:30 a.m.

And the next morning, they were back there at 8 a.m. and again they approached the restaurant and again the sign "close" was on the door.

Justice Potter Stewart: Where they spent the night, does the record show?

Mr. Howard Dixon: No, sir.

They spent the night at sympathizers and negroes of the community who were supporting core and these activities.

So when they were back the night -- the following morning, they saw the restaurant signs still there.

They cancelled their reservations and made tentative reservations for 1:30 or 1:45 that afternoon.

They, again, sat in the restaurant and again, they had adequate police protection, and again there were some people who were outside who were hostile to them and do exhibit some feelings of violence.

Along towards noon, they saw that again, the sign was not going to come down.

The walls of Jericho were not going to fall.

They cancelled their third reservation.

Now, the city makes a great deal to do about the cancellation of these reservations but we maintain that it's between a private corporation in the airlines and these individuals and there's no concern of the city how many cancellations of reservations they had made.

And upon that happening in -- within half an hour, they were approached by the city attorney for the City of Tallahassee who identified himself as the special police officer of the city and said, "I am advised that your assembly here was tend to create a disturbance or incite a riot or disorderly conduct within the City of Tallahassee.

And in the name of the State of Florida and the City of Tallahassee, I command all of you who are here, assemble immediately and peaceably to disperse.

If you do not immediately and peaceably disperse, I shall arrest you or charge to be arrested for unlawful assembly."

Reverend Collier, the spokesman for the group stated simply that "it's lawfully we're here under the protection of the Interstate Commerce Act" and he sat down.

The City Attorney Messer immediately ordered the officers to arrest the 10 petitioners and they were taken to the jail and booked.

The following morning, several of the petitioners out on bond and in haste to return to the various portions, they did it because it was Saturday and they had to get back to preach, went by the terminal restaurant and again, the sign was close but again, there were white people inside the restaurant.

But again, in -- with regard to this restaurant, it had opened up Saturday morning and was only closed apparently when the petitioners came by to board their plane after they were released from jail.

The trial proceeded on the following week on June 22nd and petitioners' counsel filed a motion to quash which raised due process under the Fourteenth Amendment, the First Amendment rights to equal protection of laws and the protection of the Interstate Commerce Act.

In the trial, there was no evidence whatsoever as -- as to any unlawful rioters or to move to its conduct.

However -- and in addition thereto, the testimony adequately discloses that there was complete police protection provided for the petitioners at all times.

Now, the Florida statute provided that in order for that to be unlawful assembly, there had to be of any persons or persons whether armed or not unlawfully, riotously or tumultuously assembled within the City of Tallahassee.

The mayor or any officer specified in the statute within the opinion of the said mayor or any officers, there is -- the assembly of such persons shall tend to create a disturbance or incite a riot or disorderly conduct.

The mayor may go among the persons or the duly delegated officer and advised them to disperse and if they failed to do so, they will be considered guilty of the crime -- charge of the crime.

The evidence failed to disclose that these facilities were not integrated, that is to say, every -- every witness who has something to do with the facility testified that these were a segregated facilities from the -- actually, the white waiting room and separate negro waiting room to the restroom and into the restaurant themselves.

Justice Potter Stewart: Was the -- was the restaurant ever -- was the restaurant at the airport ever opened during the period that these people were there?

Mr. Howard Dixon: Never opened during the period these people were there.

There were people eating in the restaurant --

Justice Potter Stewart: When they first got there but there was a sign saying "closed"?

Mr. Howard Dixon: Yes, sir.

And one of the petitioners, I presumed they got hungry at sometime of the day, went around to the kitchen and found that they were preparing meals for the airplanes and that the chief of the detectives was eating in the kitchen but I don't think my petitioner felt that he could necessary do the same thing.

The record is bearing that the -- that the petitioners had any notice that the restaurant was closed was a reason given by the restaurant manager in his testimony.

He testified that they closed the restaurant because they were under repair.

Upon close requesting he admitted they had two reasons, the one thing that they want that heard about this "Freedom Ride" in Alabama and other States and that they wanted to avoid violence so they took this opportunity to close to make the repair.

But there is a (Inaudible) testimony to the effect that before and after the restaurant was open and providing service for white customers.

The -- at the close of our case, we also introduced -- reintroduce some motion to quash on the same constitutional grounds.But petitioners were found guilty and fined $500 each or in default thereof they were given a 60-day sentence.

An appeal was taken directions to the Florida Supreme Court on the basis that the Tallahassee statute was taken directly from the state statutes and was -- was adopted in direct reference thereto but the Florida Supreme Court under its jurisdiction, which allowed them to construe a state statute, said this was not a state statute and claimed that we had improvidently lodged our appeal in that Court and referred it back to the Circuit Court of Leon County.

The Circuit Court of Leon County, we pursued our appeal and the Court affirmed the decision of the lower court.

Under the State Constitution, Article 5 Section 6 Paragraph 3, the state court is the highest appellate court from cases arising in the Municipal Court.

We therefore have brought these petitioners a writ of certiorari to this Court.

Now, the --

Justice John M. Harlan: Well, I have understood there was alleged state ground for this case (Inaudible) writ of certiorari (Inaudible) namely, that under your State Constitution, state procedure, there was available to you as common law writ of certiorari for the Supreme Court of Florida.

If so, you just make it -- make that application and therefore, we (Inaudible)

Mr. Howard Dixon: Well, Your Honor, the --

Justice John M. Harlan: I don't (Voice Overlap) --

Mr. Howard Dixon: -- common --

Justice John M. Harlan: -- any -- I thought they were responsible to exchange back and forth on this thing before the advantage of writ, then I find no argument (Inaudible)

Mr. Howard Dixon: Your Honor, we find that the common law writ of certiorari is discretionary and is the old common law form that is to say is very limited and restricted in a scope.

It's limited to the jurisdiction and to determining what are the essential requirements of law.

Certainly, in -- this Court has considered the cases arising from Texas in Largent versus Texas and Tucker versus Texas where it was a question of Jehovah's Witnesses and so forth where there was a highest court, appellate court that the petitioner could go.

And so, from the county court in Texas, they went directly to the Supreme Court on an appeal.

Well, of course, perhaps, you could consider our writ of certiorari in the ground -- actual basis as being an appeal but we feel that we could not get a full review in the Supreme Court of Florida.

Therefore, we could come here because it would present to the federal questions which under Magnum -- (Inaudible) you -- you -- on the petition for writ of certiorari, you're mostly concerned with important questions of public interest which we think is this.

Justice Hugo L. Black: But may I ask you, what case we thought that we can look to see that the review is such a limited nature that doesn't amount to -- in a review? There was a case to that effect?

Mr. Howard Dixon: Yes, sir.

I think that the case in -- in --

Justice Hugo L. Black: What is it?

Mr. Howard Dixon: -- States versus Katz.

Justice Hugo L. Black: State versus what?

Mr. Howard Dixon: State versus Katz.

Justice Hugo L. Black: How you spell it?

Mr. Howard Dixon: K-A-T-Z and State versus Smith.

Justice Hugo L. Black: Where are they?

Mr. Howard Dixon: That's 108 So.2d 60 which outlines completely the -- the limited scope of calling all writ of certiorari in court.

Justice Hugo L. Black: Where is the other one beside it?

Mr. Howard Dixon: Oh, I'm sorry, sir.

State versus Smith is 118 So.2d 792.

Justice Hugo L. Black: I asked you that because, Alabama, your neighboring State has a system of appealing to the Court of Appeals while it was originally thought, as I recall it.

If there -- that went in to review the Supreme Court held differently, instead, held that they had a common law right a rule of right to bring a full common law writ of certiorari and the Court would therein decide whether the decision of the Court of Appeals had rarely been against the law of the State as announced by the Supreme Court, is that about what's done in Florida?

Mr. Howard Dixon: Something like that, Your Honor, I'm not --

Justice Hugo L. Black: But why wouldn't -- that has turned out to be a -- a right to practice a plenary review in the court of -- Supreme Court of Alabama?

And I don't know just -- what your State is --

Mr. Howard Dixon: Well --

Justice Hugo L. Black: (Voice Overlap) --

Mr. Howard Dixon: -- we are not allowed a -- a right of review as a matter of right --

Justice Hugo L. Black: I understand that.

Mr. Howard Dixon: -- to a Supreme Court.

Justice Hugo L. Black: You can get there by a discretionary writ.

Mr. Howard Dixon: Yes, sir.

But it will not present the federal questions.It will not present a full review.

Justice William J. Brennan: Well, Mr. Dixon, perhaps, I -- I must say you're a part of practice, it just completely be funny you made in the last couple of years in many cases that have come from your State.

And I -- do I read your law correctly as providing nearly two certiorari forms, a certiorari to your Supreme Court.

Isn't there some form called certiorari which is a discretionary review in the Supreme Court provided for by your Constitution now?

Mr. Howard Dixon: Well, I think it said that under the statute that is the common law of writ of certiorari but as far as --

Justice William J. Brennan: Well, is that the only form of certiorari?

Mr. Howard Dixon: Yes, sir.

Yes, sir.

That's the only --

Justice William J. Brennan: You don't have some certiorari in -- in the couple of our own which is appellate in form?

Mr. Howard Dixon: Well, we have a writ of certiorari that is granted in -- from administrative decisions to higher courts.

But that -- that --

Justice William J. Brennan: No, I'm speaking only of how you get to your Supreme Court from your intermediate Court of Appeals.

Your intermediate Courts of Appeals have only been existing a few years, have they not?

Mr. Howard Dixon: Yes, sir.

Justice William J. Brennan: Now --

Mr. Howard Dixon: (Voice Overlap) few years.

Justice William J. Brennan: Well, now -- maybe you can tell me, is there one or more forms of certiorari review in your Supreme Court, common law form and an appellate form?

Mr. Howard Dixon: Just the one common law form.

Justice William J. Brennan: Just the one common law form.

Mr. Howard Dixon: Yes, sir.

Justice William J. Brennan: Now, is that an original writ or is that a -- a step in the -- in the process?

Mr. Howard Dixon: It's -- it's an original writ because if you take in -- if you can take a writ of certiorari say from my Circuit Court to a Circuit District Court of Appeals, then from that decision, if you want appeal for District Court of Appeals, you must take an appeal to the Florida Supreme Court.

Justice William J. Brennan: An appeal?

Mr. Howard Dixon: Yes, sir.

Justice William J. Brennan: So there is a way of getting to your Supreme Court by appeal, is this some right?

Mr. Howard Dixon: Well, after you -- after you got into the District Court which, of course, is discretionary, that would seem to me that you could appeal as a matter of right, yes, sir.

But you're getting there will be discretionary under the common law writ.

In other words, we would not have to follow that in order to apply here for a petition for writ of certiorari.

Justice William J. Brennan: I am not so sure you wouldn't if -- you may get a review on your federal questions on a discretionary writ in your Supreme Court, why would you have to pursue that before coming here to us?

At least exhaust that advocate.

Why would you have to do that?

Mr. Howard Dixon: Well, because it doesn't give a full review and in addition, we -- we would feel --

Justice Tom C. Clark: But doesn't here.

Justice William J. Brennan: You mean it doesn't give -- you couldn't get your federal questions reviewed?

Mr. Howard Dixon: No, sir, we do not plead and we get our federal question reviewed.

Justice William J. Brennan: That you get reviewed what?

Only the question of the jurisdiction --

Mr. Howard Dixon: Jurisdiction --

Justice William J. Brennan: -- of the persons and subjects matter, is that all?

Mr. Howard Dixon: Yes, sir, an essential requirement.

Justice William J. Brennan: Well, then it can't be such as Mr. Justice Black just suggested to the Alabama files, where you can get a review whether the decision below is contrary to state law has state as the Supreme Court has announced it.

Mr. Howard Dixon: No, sir.

I don't think it could be that.

No, sir.

Justice Tom C. Clark: I thought you've been -- I don't know a thing about it.

I made -- it was then ever before your election on your constitutional amendment and it was explained to me at that time that there was a writ that you could go to your Supreme Court on constitutional questions, is there such a writ as that?

Mr. Howard Dixon: Yes, sir, that is passing directly from the -- construing a -- controlling position of the Florida or Federal Constitution if it was involved in -- in any state statute, as I understand it, the validity of the state statute or federal statute or treaty or construing or controlling provision of the Florida Federal Constitution.

Justice Byron R. White: The validity of this statutory or constitutional interpretation validity question that's --

Mr. Howard Dixon: Yes, sir.

Justice William J. Brennan: But you told as you went to the state court and they said what you had involved here, this Tallahassee ordinance, is it?

Mr. Howard Dixon: Yes, sir.

Justice William J. Brennan: Was not a state statute for the purposes of that basis of review in the Supreme Court, is that it?

Mr. Howard Dixon: Yes, sir.

And they send us back to the Circuit Court because they said this is where our appeal lies.

And of course, according to the Constitution, it says that the Circuit Court is the highest appellate court for cases arising from the Municipal Court.

Justice Hugo L. Black: I've said in the Court's opinion in this case?

Mr. Howard Dixon: Yes, sir.

Justice Hugo L. Black: Where is it?

Mr. Howard Dixon: When -- not in the Court's opinion in this case, it's in the statute, it's Article 5.

It will be in Article 5 Section 6 Paragraph 3, it will be in the appendix -- well, well, (Inaudible) at the moment, Your Honor, but I'm sure it's in here several times.

Justice William J. Brennan: But why did you go -- didn't you, at one stage, you -- these proceedings go into the District Court of Appeal for certiorari?

Mr. Howard Dixon: Yes, sir.

Justice William J. Brennan: When was that?

Mr. Howard Dixon: That was after we had taken our appeal to the Circuit Court of Leon County.

Justice William J. Brennan: And you had -- and you were there -- do you -- you lost your appeal there, didn't you?

No, sir, we lost our appeal in the Circuit Court.

Mr. Howard Dixon: Yes.

But when we took our petitioner for a writ of certiorari, we were a day late in filing.

Now, a --

Justice William J. Brennan: But why -- why did you think you had to go to the District Court of Appeal on certiorari?

Mr. Howard Dixon: We thought that -- we didn't have to go there.

We thought that it was discretionary if we have filed within the period of time and still would've been a manner for -- by discretion, whether we went there or we applied here.

Justice William J. Brennan: And because you were a day late there, your application was not entertained and then you came directly to us in the Circuit Court, is that it?

Mr. Howard Dixon: Yes, sir.

Justice William J. Brennan: I mean, you never did try to go to the Supreme Court.

Mr. Howard Dixon: No, sir, not again.

We went there once and --

Justice William J. Brennan: Yes.

Mr. Howard Dixon: -- (Inaudible).

Justice Arthur J. Goldberg: Did you (Inaudible)

Mr. Howard Dixon: Not a full review.

It couldn't have given us a full review.

I -- and I don't think that they would have passed on the federal questions which we think are prime importance in this case.

Justice Arthur J. Goldberg: The certiorari in full review, what kind of review did you think (Inaudible) that?

Mr. Howard Dixon: Well, it would be one determining possibly the application of the statute under the Florida Constitution, which we do not feel that if they -- after it was applied, would not bring into scope.

The federal questions involved, mainly, a right to be in speech assembly and so forth.

Justice Arthur J. Goldberg: Did you have the (Inaudible)

Mr. Howard Dixon: I don't think I can, Your Honor.

Justice John M. Harlan: Well, I noticed in your reply brief (Inaudible)

Mr. Howard Dixon: Yes, sir.

Justice John M. Harlan: (Inaudible)

Mr. Howard Dixon: Yes, sir.

Justice John M. Harlan: (Inaudible)

The narrow question is simply this, your statements in (Inaudible) this discretionary review in this type of situation will have any jurisdictional questions (Inaudible)

If that's true, then what you say the Court was correct.

You don't get a full review.

On the other hand, I understood the State to say in its petition in its (Inaudible) done on the petition for certiorari is that limited review of the phrase jurisdiction within the state department under Florida law jurisdiction be used in a broad sense that would've permitted you to test the federal questions under these discretionary applications to the Supreme Court.

Now, that's the issue that's in (Inaudible)

Mr. Howard Dixon: Yes, Your Honor.

Justice John M. Harlan: (Inaudible)

Mr. Howard Dixon: Well, the Court would like the supplemental memorandum brief with the adjective provided.

Justice John M. Harlan: (Inaudible)

Justice William J. Brennan: Well, Mr. Dixon, if -- are you familiar with, should that's give it I'm sure, Robinson versus State, decision I forgot and I think of your Supreme Court 132 So.2d 3.

And if you are, I'd like to know what your language means that on common law of certiorari, that Court can consider jurisdictional questions and deviations from "the essential requirements of law", what's that mean?

Mr. Howard Dixon: Well, the essential requirements of law are defined in one case and here as due process.

But I don't think they mean due process in the times which we have explored in this case that is to say on Thompson versus Louisville.

I think it means more than procedural due process whether there's a Louisville counsel and so forth and so on.

Justice William J. Brennan: Well, what were the issues you wanted to raise on your application for certiorari to the District Court of Appeals?

Mr. Howard Dixon: What we want to raise basically that the statutes as applied was unconstitutional and, of course --

Justice William J. Brennan: Unconstitutional under Florida Constitution?

Mr. Howard Dixon: Yes, sir.

Justice William J. Brennan: Well, now, if you had -- if you had prevailed on that ground, then it wouldn't have been necessary for anybody to consider the federal constitutional claims, would it?

Mr. Howard Dixon: That's right, sir.

Justice William J. Brennan: And you didn't get a hearing on that state ground contention because you filed a day late?

Mr. Howard Dixon: Yes, sir.

Justice William J. Brennan: But why under ordinary rules that's -- that far you can come here?

Mr. Howard Dixon: Well, because we feel that -- that writ was merely discretionary and -- and we -- as that day we could have filed before time and if we didn't get a decision, we can still come here because we were applying under the federal code from the highest appellate court in our State.

Justice Byron R. White: But could the -- could the District Court of Appeals had considered federal constitutional question?

Mr. Howard Dixon: Oh, it seems to me yes, that they could.

Justice Byron R. White: And you -- and you would have taken to them both your federal -- both your Florida and your federal constitutional question if your writ of certiorari to that Court had been granted.

Mr. Howard Dixon: Yes, sir.

Justice Byron R. White: And you were a day late?

Mr. Howard Dixon: Yes, sir.

Justice Byron R. White: And that's why it was dismissed?

Mr. Howard Dixon: Yes, sir.

Justice Hugo L. Black: You said one thing that I have been quite (Inaudible)

You said that -- that's -- after you were tried, you thought you have a discretionary right either to go to Court of Appeals -- the District Court of Appeals which Supreme Court of Florida are to come here.

What did you mean by that?

Mr. Howard Dixon: Well, that we could go to use the District Court of Appeals or Supreme Court under a restrictive right of review.

Justice Hugo L. Black: Or we had a discretion to do that or you could come on (Inaudible) directly.

Mr. Howard Dixon: Yes, sir.

Under an opportunity to have for review, the -- the common law writ in Florida does not provide for a full review of the case below.

And under the circumstances, it will be the same as if in Largent versus Texas, we had filed an appeal from the Circuit Court decision and ask this Court to hear our appeal.

Justice Hugo L. Black: Well, supposed you had gone exercised what you think was your discretion to go into the Court of Appeals of Florida or the -- in the Supreme Court I understood you to say you'll have a right of appeal directly, do you, if you had gone there, is that right?

Mr. Howard Dixon: Well, I think that we will -- we are gone there once.

We would probably have filed in the District Court of Appeals.

We tried that and we were late.

Justice Hugo L. Black: Yes.

And -- and suppose you had not been late, do you think you could have brought it on up here then?

Mr. Howard Dixon: Not if we already had our appeal filed in the District Court and after they accepted --

Justice Hugo L. Black: After they acted on it.

Suppose they had acted, decided against you, could you have come up here?

Mr. Howard Dixon: Yes, sir.

I think we could have.

Justice Arthur J. Goldberg: And that would have gone in a higher court (Inaudible)

Mr. Howard Dixon: Well, yes, but I think we could come up here because as -- under the --

Justice Byron R. White: (Inaudible) as soon as the Circuit Court -- as your Circuit Court acts on an appeal from a Municipal Court's judgment that you may come from that court directly to this Court without even attempting to get in to the District Court of Appeals or any of your Supreme Court, that's what you suggest?

Mr. Howard Dixon: Yes, sir.

Chief Justice Earl Warren: Well, what is it in your case that the Court of Appeals could not have reviewed?

Mr. Howard Dixon: We've maintained that they could not have reviewed the federal questions because it would not have come within the purview of the jurisdictional questions or the essential --

Justice Byron R. White: You told me how those, the District Court of Appeals could have handled both federal and state constitutional questions in any of your Supreme Court that you would have gotten the restrictive review of this?

Mr. Howard Dixon: No, sir.

I'm sorry if I gave that impression, I was wrong.

I would correct that.

They would not -- either the District or the State Supreme Court been able to give you full review on the federal questions.

Justice Byron R. White: But -- but they -- would've on your -- on your state constitutional question.

Mr. Howard Dixon: Yes, sir.

Justice Byron R. White: Do you -- you mean that in this kind of a case that the Circuit Court is the only court in your -- is the highest court in your State in which you may have a review of your federal constitutional question?

Mr. Howard Dixon: I don't know but I -- it feels that's the highest appellate court we have insofar as the full review is concern.

Justice Byron R. White: Well, that's what I --

Mr. Howard Dixon: Quite possibly --

Justice Byron R. White: -- that's what I --

Mr. Howard Dixon: -- under our essential requirement of law, some federal questions may be reviewed.

But we -- the State --

Justice William J. Brennan: Well, are there any more essential requirements of law than federal constitutional questions?

Mr. Howard Dixon: No, sir, it does not.

You're right.

Justice William J. Brennan: Yes, I mean offhanded.

Just seems to me you could've had the -- had you been timely in the District Court of Appeals.

As I read that Robinson case, you could have had a review of these federal questions at least there whether or not you could've gather review on the Supreme Court.

That's -- I'm just saying offhand, that's the way Robinson seems to me to read.

Mr. Howard Dixon: Yes, sir.

The petitioners press there -- claims under the motion to quash under the grounds of the Thompson versus Louisville decision which stated that the lack of evidence or the lack of any evidence of a crime being committed was a denial of due process.

That also was a claim that we pursued in this Court together with the question concerning the freedom of speech and assembly which even assuming argumendo that the petitioners were found guilty of violating the unlawful assembly law of City of Tallahassee.

They went under any circumstances under freedom of speech and freedom of assembly, then permitted their rights to assemble because the conflict would have to be resolved in favor of the First Amendment.

There were no words of incitement and at all times, the petitioners were peacable and displayed no harshness or any type performed to misconduct whatsoever.

This line of cases, of course, is -- it's been highlighted in the past year by Edwards verus South Carolina and Garner versus Louisiana and so forth.

And the third and chief ground was that the denial of the facilities on -- at the terminal that is the restaurant facility was a burden on interstate commerce under the Boynton verus Virginia case.

And as such, this was a denial to them of rights amended under the Constitution.

That way --

Justice Potter Stewart: Mr. Dixon, you made no claim, did you, under the constitutional guarantee of the free exercise of religion?

Mr. Howard Dixon: No, sir.

Justice Potter Stewart: These men are all clergymen?

Mr. Howard Dixon: Yes, sir, clergymen or rabbis.

We did make a claim, however, on the equal protection of the laws.

As you may recall in Wright versus Georgia, this Court said that when the police officer ordered the basketball players to disperse, they said that their order was violative of the Equal Protection Clause of the Fourteenth Amendment and we submit, Your Honor, that this is the importance public issue of this particular case in view of the fact that the south has for years been proving for legal tools in which to maintain the status quo that these cases of such importance that you will consider the petitioners' petition.

Thank you.

Justice John M. Harlan: You made no argument (Inaudible) on the brief based on the possible vagrancy of the statute.

Mr. Howard Dixon: No, sir, I think that was on -- we should have one but hindsight is better than foresight in this case.

Thank you.

Chief Justice Earl Warren: Mr. Hill.

Argument of Edward Hill

Mr. Edward Hill: Mr. Chief --

Chief Justice Earl Warren: Would you mind addressing yourself first of the -- the question we've been -- in discussing with counsel or whether they're properly hear or not?

Mr. Edward Hill: I -- I think I need to apologize to -- to Your Honors, if it please the Court, that we didn't understand that we would necessarily have to argue the jurisdictional question here because we thought that it had been resolved by the granting of this certiorari.

Justice John M. Harlan: But the order for certiorari says specifically that the part with our requested to brief the jurisdictional question (Inaudible) petition for writ of certiorari in the Circuit Court in the State of Florida was granted.

Counsel or -- counsel or directly to brief and argue the petition to the merit, the question whether the judgment was supported by adequate state ground.

Mr. Edward Hill: The judgment is supported on adequate state grounds.

Justice John M. Harlan: What does that mean?

Mr. Edward Hill: We construe that to mean that the -- that the statutes and the ordinances around which these charges were framed were constitutional and properly framed and that the necessary proof had been introduced in the trial court to sustain the objections, I mean to sustain the convictions.

We didn't understand that we would've do that to -- to argue the question of jurisdiction when the writ was granted because this Court has only two other occasions and I think this counsel himself was involved in -- in these matters, tried to come to this Court directly from the Circuit Court of the Second Judicial Circuit of Florida, that Leon County and has been denied.

But we didn't -- we didn't have any idea that this Court would grant it.

Justice William J. Brennan: That only goes -- that only means that we and the board had always speak the same language, doesn't it?

Mr. Edward Hill: Well, sir --

Justice Hugo L. Black: What case is -- were those (Voice Overlap) --

Mr. Edward Hill: Those were cases of -- I believe its Number 783.

Justice Hugo L. Black: Of what?

Mr. Edward Hill: Number 783, Speed and a case Number 671, Steel and they may have other -- other designations.

Justice Hugo L. Black: When?

I'm sorry.

Mr. Edward Hill: When, I didn't have --

Justice Hugo L. Black: Are they reported or now reported?

Mr. Edward Hill: No, sir.

I would assume they all, sir.

Certiorari was denied.

Justice Hugo L. Black: You don't have to report (Voice Overlap) reporting there?

We didn't say what the ground we denied them or did we?

Mr. Edward Hill: Sir, what was that question?

Justice Tom C. Clark: We did not say what the ground we denied them.

Mr. Edward Hill: No -- no, sir, you did not.

No, sir, you did not.

In our brief in opposition, we say -- we urge on this Court the fact that this causes the third attempt to bypass the highest appellate court of the State of Florida and to have this Court grant certiorari to the Circuit Court of the Second Judicial Circuit in and from Leon County, Florida.

Not only the --

Justice Hugo L. Black: (Voice Overlap) the same cases?

Is that the same cases?

Mr. Edward Hill: No, sir.

That was a case Number 783, Speed, Spagna and Herndon, petitioners against Tallahassee.

Justice Tom C. Clark: What's year -- (Voice Overlap) --

Mr. Edward Hill: Reported --

Justice Tom C. Clark: What term is it?

Its 783 what?

Mr. Edward Hill: I don't have the term but it's in 356 U.S. 913.

Justice Hugo L. Black: That's what I want to find out.

Justice Tom C. Clark: (Inaudible)

Mr. Edward Hill: Yes, sir.

I had --

Justice Hugo L. Black: What is the other one?

Mr. Edward Hill: The other one is --

Justice Hugo L. Black: 356 (Inaudible)

Mr. Edward Hill: That's March 1958, excuse me, Your Honor, March 1958.

The next one is Number 671 in your March 1961 terms, 365 U.S. 8 -- 834.

Not, and as I started to say, not only that petitioners here filed late but they filed without the filing fee which is just absolutely unheard.

They won't take it at all.

Justice Byron R. White: Let me ask you.

Is this a -- is there some place in the Florida appellate court system that a litigant can have a -- have a Circuit Court's decision on his federal constitutional question reviewed?

Mr. Edward Hill: I think so sir, yes sir.

Justice Byron R. White: Where?

Mr. Edward Hill: In the District Court of Appeal in the First District where it happens in Leon County, Florida.

Justice Byron R. White: He could have -- it's your position that there is a higher court to which federal constitutional question --

Mr. Edward Hill: Two.

Justice Byron R. White: Do you think there are two, even if --

Mr. Edward Hill: Yes, sir.

Justice Byron R. White: -- even if the -- even if the District Court of Appeals had acted -- had taken its case and had rule against the -- he could go to your Supreme Court.

Mr. Edward Hill: Yes, sir.

It could be certified.

Justice Byron R. White: Or to a common law writ?

Mr. Edward Hill: Well, under -- it is the writ of certiorari that they -- that they hand out sir.

I -- it maybe a common law -- a combination of common law.

Justice Byron R. White: Do you have any -- do you have any instances or any citations where the Supreme Court or any opinions of the Supreme Court of Florida has, on a writ of certiorari from the District Court and -- your intermediate appellate court where the writ of certiorari, it had dealt with a federal constitutional question?

Mr. Edward Hill: I can't put my finger where -- on -- one right now but, Your Honor, I -- I feel assure that I'll --

Justice Byron R. White: What's the usual route -- what is the usual route for an intermediate court to the Supreme Court?

Only certiorari or is there an appeal?

Mr. Edward Hill: Certiorari.

Justice Byron R. White: Only certiorari.

Mr. Edward Hill: (Inaudible) -- sir?

Only certiorari.

Justice William J. Brennan: No appeals of right at all?

Mr. Edward Hill: Not from the District Court, no sir.

Justice William J. Brennan: Not from the District Court of Appeals.

Mr. Edward Hill: That's the intermediate.

No, sir.

Not that.

Justice William J. Brennan: What is it?

Are there some appeals of rights from the court's first instance to the Supreme Court bypassing the Court of -- intermediate Court of Appeals?

Mr. Edward Hill: I think when there are constitutes -- when there are constructions on state statutes that are passed on by trial court in Florida, you can go directly and that's what he try to do here.

Justice William J. Brennan: That's the -- bypass the District Court.

Mr. Edward Hill: That's correct.

Justice William J. Brennan: Now, in those instances where you can't bypass the District Court, you get there by right or is it on writ of certiorari?

Mr. Edward Hill: By writ of certiorari.

Justice William J. Brennan: And then your -- your point is that he, might on writ of certiorari, had gotten the District Court of Appeal here.

Mr. Edward Hill: Yes, sir.

Justice William J. Brennan: And then, a decision adverse to him there, he could have again gone at the Supreme Court again on discretionary writ of certiorari.

Mr. Edward Hill: Yes, sir, on certification up from this Court which they probably would have had the right to exercise --

Justice William J. Brennan: Now, certainly you've introduce (Inaudible) certification --

Mr. Edward Hill: (Voice Overlap) --

Justice William J. Brennan: -- is this from the District Court?

Mr. Edward Hill: That's correct, sir.

Justice William J. Brennan: That's something different from certiorari?

Mr. Edward Hill: Well, they certify cases from the District Court of Appeals to the Supreme Court in certain cases, for example, questions of great public interest and the like.

Justice William J. Brennan: You mean before decisions?

Mr. Edward Hill: I -- I believe that's after decision, sir.

Justice William J. Brennan: And this is a certification by the District Court of Appeal which does not require any application and -- for certiorari to the Supreme Court.

Justice Potter Stewart: Certification is by the Supreme Court.

Mr. Edward Hill: No, sir.

The certification --

Justice Potter Stewart: Isn't it?

Mr. Edward Hill: -- it certified up.

Justice Potter Stewart: Well, who certifies it?

Mr. Edward Hill: The District Court of Appeal.

Justice Potter Stewart: Oh, and then the Supreme Court has no choice but to take it?

Mr. Edward Hill: No, sir.

They -- I think they have a discretion.

They don't have to take it.

I don't think that lower intermediate court could force it on that.

Justice William J. Brennan: Well, if I might suggest that in my (Inaudible) there has some good reason --

Justice Potter Stewart: For sharing.

Justice William J. Brennan: -- (Voice Overlap) all that.

Chief Justice Earl Warren: Gentlemen -- I beg your pardon.

Justice Hugo L. Black: Wait a minute, may I ask you if there's been any labor decision, and that is the State versus Smith, which your adversary cited to us in which I now have before, citing out what kind of rights can be taken up as of 1960.

And it very much follows the rule in Alabama to which I refer in which it says, "And we resist the rule wherein they have -- they can bring (Inaudible) with the issue with the Court's discretion to correct the procedural court wherein they have not observed," as Justice Brennan read, "those requirements of the law which are deem to be essential to the Administration of justice."

Then he says, “Failure to observe the essential requirements of the law means failure to accord due process of law within the contemplation of the Constitution are the commission of -- and error so fundamental in character is to fatally infect the judgment and render it void."

Then he says, "It seems to be the southern law of the State that the duty of a court to apply, to admitted facts a correct principle of law, correct principle of law is such a fundamental and essential element of the judicial process that a litigant cannot be said to have the remedy and by due process of law guaranteed by Section 4 of the Declaration of Rights."

And the -- the Alabama ground was that you had to have decisions of law in order to keep the law uniform throughout the State.

Mr. Edward Hill: That's right.

That's one of the reasons that the Florida State Supreme Court will -- will review certain things when they have conflicts between the various District Courts.

Justice Hugo L. Black: As the federal law has applied in a given case.

Mr. Edward Hill: Yes, sir.

Justice Hugo L. Black: And that seems to me that they can bring it up -- bring it up as a --

Mr. Edward Hill: Yes, sir.

Justice Hugo L. Black: -- matter of discretion.

Mr. Edward Hill: Yes, sir.

Justice Hugo L. Black: Is there any -- is that pretty fairly expressed the rule as you understand it?

Mr. Edward Hill: As I understand it.

Justice Hugo L. Black: Can you give us any later cases?

Mr. Edward Hill: No, I -- I do not.

Justice Potter Stewart: You have Robinson against State in your brief, your brief filed here on March 21st of this year, that's a later case, 132 So.2d 2nd, page 3.

Mr. Edward Hill: Yes, sir.

That -- that probably -- yes sir, I believe that is later.

Justice Potter Stewart: The Smith case was a 119 So.2d and the Robinson case was (Voice Overlap) --

Mr. Edward Hill: Yes, considerably later.

Yes, sir.

Chief Justice Earl Warren: Well, gentlemen, I -- I think both of you had better brief this thing -- this matter for us and -- and have a -- have a brief in on it within a week.

Mr. Edward Hill: Within one week, sir?

Chief Justice Earl Warren: Yes, to both sides.

You may proceed.

Rebuttal of Howard Dixon

Mr. Howard Dixon: Your Honor, what if we could extend that to one -- 10 days?

Chief Justice Earl Warren: Alright, 10 days.

Rebuttal of Edward Hill

Mr. Edward Hill: And if it please the Court.

The position of the City of Tallahassee here is, and we framed our -- the complaint or the information around the ordinance that required the police officer to make an examination of the situation as he found it.

And if in his opinion be contemplated, disturbances of the peace and other disturbances, he could go along those persons who were assembled and ask them to then and there disperse.

Now, that we think is one of the things that had been written in Talla ordinance specifically to comply with the common law definitions of unlawful assembly that if where they -- where he has -- has the opportunity and has the right and is vested with this opinion procedure.

If after he formed this opinion, he orders them to disperse, there is a refusal of dispersal, then the -- the ordinance carries further and says that they are then and there deemed to be unlawfully deemed guilty of disorderly conduct.

And if they are then deemed disorderly -- guilty of disorderly conduct, you have an assembly of persons deemed guilty of disorderly conduct and thereby, they become a -- a disorderly and unlawful assembly.

Now, let's work back to the facts in this thing.

These persons came to Tallahassee with no valid purpose known to the persons who are charged with responsibility of law and order that.

Chief Justice Earl Warren: With no what?

I didn't understand.

Mr. Edward Hill: They had no advance knowledge of the -- of the reasons why they were coming there.

They -- there were some advance publicity that filtered them to Tallahassee by virtue of the press and the like and they were called "Freedom Riders" and they -- they notified the press in advance that they are coming for obvious reasons so that they can be met and their views disseminated in that manner.

With that advance knowledge, the City of Tallahassee furnished them what we thought was adequate protection because we -- we did not want any instances that it -- or incidents that it happened like in other places.

For a period of time, as Mr. Dixon says, they were merely observed here and there.

They were allowed to go in and out of the waiting room, in the washroom and the eating facilities of the bus station there.

And there were people -- yes, sir, there were.

There were people there who are contrary to their views and they were somewhat hostile.

But all of those people would disperse and clear the way.

And as far as equal protection of the law is concern, they will give them every protection that it was possible to give them even more than equal, more protection that was given anybody else in Tallahassee at that time.

After they had eaten and so tested these facilities, which we assumed to be their right under their right to assemble and their right of free speech, they went from there to the airport and as Mr. Dixon says, they found the airport restaurant closed.

They were not denied the use of the restaurant facilities.

They were not denied the use of the airport waiting room facilities.

But this restroom -- this restaurant itself which is the Savarin Restaurant in the Tallahassee Municipal Airport was closed and the record indicates that it was closed for repairs.

Counsel points out that there was a two-fold reason.

One, to repair certain machinery, two, that since this repair to this machinery was necessary, then this was the right time to do it.

We contend that that's not an unlawful exercise of the discretion by an authority of that kind to choose a proper time when there is that possibility of some type of disorder in the area.So --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward Hill: They did nothing that I would say that it was a riotous or tumultuous but they were unlawfully assembled in that they refused to obey this officer when he asked them to disperse after going into the second day of the type of conduct that was complained of in the information.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward Hill: No, sir.

He has to do certain things that tend to create a disturbance in the neighborhood and to plant in the minds of firm and rational people that there is lack of (Inaudible).

That is -- that state the crux of unlawful assemble.

Justice Byron R. White: What did they do to do that?

Mr. Edward Hill: What did they do to do that?

The making of these plane reservations.

Your Honor, it -- it -- I hate to -- I'm not -- I'm not going to apologize but I'm going to --

Justice Byron R. White: You mean (Voice Overlap) --

Mr. Edward Hill: -- double back by saying I --

Justice Byron R. White: -- the ticket counter?

Mr. Edward Hill: I hate to apologize by saying this but there are many, many times when it's extremely difficult to get in to a record the feelings that take place around a situation of this kind.

And you have to find and point out as many of the facts as you possible can.

But in cases of this kind, you find that community somewhat seating and it's impossible to -- to really get everything like that and to the -- to the record.

And so therefore, we have to rely on our authority that's granted in the statute and the ordinance that persons -- real courage in the community, people who knows substantial citizens, not just nuts, for example, people who's substantial, who can feel and see and understand what's going on at that particular time.

And he formulates that opinion and then he asks those people to leave.

Then if they --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward Hill: No, no, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward Hill: And they did.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward Hill: The continued activity which they knew and did result in disturbance that was created there at the scene.

We maintain that -- that the length of time that's involved in -- in this thing has a great deal of bearing on it.

In the many of your cases of unlawful assembly, one he cites -- that cited the Aaron against -- States versus Butterworth, the man was asked, "What do you do in here?"

And he just said, "Fellow worker," so on so on.

They arrested him just like that.

But these people were given every opportunity in -- to test here and the city provided them that -- that particular protection that they need.

I -- and -- and after it lasted as long as it did, those persons in authority found that it was necessary to attempt to disperse them.

Now, I -- I -- without -- it's not -- it's not in my brief but in -- in Edwards versus South Carolina, Justice Clark says that even though the city manager, and he was a city manager at that time, might have been honestly mistaken as to the eminence of danger, this was certainly a reasonable request that it was his request to disperse by the city's top executive officer in an effort to avoid the public poll and that's -- that's generally the theory on which (Inaudible).

After they have -- people have tested, everybody has got a right to but they don't have a right to just --

Justice Hugo L. Black: (Inaudible) hold in that?

Mr. Edward Hill: Sir?

Justice Hugo L. Black: What did the Court hold in that?

Mr. Edward Hill: The Court held in Edwards -- in the Edwards case that they -- that they would deny their right to be there as -- as well -- and then that was cited here (Voice Overlap) --

Justice Hugo L. Black: You're reading from the dissent.

Mr. Edward Hill: I'm reading from the dissent, yes, sir.

But we urge that -- that --

Justice Hugo L. Black: May I --

Mr. Edward Hill: -- the theory of --

Justice Hugo L. Black: -- appeal your argument doesn't amount to this.Maybe it's good because of the difference of opinion on this and has been and so expressed by judges.

You say that even though a person is exercising an undoubted constitutional right, if the police reach the conclusion that the exercise of that undoubted constitutional right may obtain people who disagree with disputes and so that it might make them wanted to hit it or create some vows that men, he can be denied the right --

Mr. Edward Hill: No, sir.

Justice Hugo L. Black: -- and can be convicted for exercising.

Mr. Edward Hill: The continued exercise of it --

Justice Hugo L. Black: Continue to exercise of undoubted constitutional right.

Mr. Edward Hill: When it is attendant with such -- when the attendant with such circumstances --

Justice Hugo L. Black: That somebody who is uphold to his views might want to create disturbance, in other words, that even though the disturbance has brought them out because some person disagrees with another fellow's exercise of his constitution right, then he can be convicted for exercising its constitutional right.

Mr. Edward Hill: Well --

Justice Hugo L. Black: Isn't that it?

Maybe I'm wrong but I thought it was, it is -- many spokesmen for that view.

Mr. Edward Hill: That's our --

Justice Hugo L. Black: As a matter of fact, I think we've had it in connection with some of religious activities.

Mr. Edward Hill: I'm not sure that I can quite answer that.

I -- I may have a reference here that --

Justice Hugo L. Black: Well, did they do anything in your judgment that they didn't have a constitutional right to do?

Mr. Edward Hill: I think that they -- instead of answering it saying yes or no, I would say that in the situation in which those people found themselves, they had other proper remedies.

Justice Hugo L. Black: Suppose they did.

Suppose it's a constitutional right to do it this way.

Mr. Edward Hill: I don't think it's able the constitutional right of any party to upset a community, Your Honor.

Justice Hugo L. Black: Well, it's -- to violate a law but did you have any law against their being there?

That's in special term that fits this case.

Did you have any law that says that people should not gather, which applied to everybody without the -- what -- what they were there for?

Mr. Edward Hill: Yes, sir.

Justice Hugo L. Black: That -- is this the law that you referred to here?

Mr. Edward Hill: That statute says --

Justice Hugo L. Black: But that's the one that I think Mr. Justice Harlan's question, if I'm not mistaken, pointed out.

It finally get down to the point that the only trouble that was because would be by the exercise of a constitutional right under that (Inaudible) law just that -- suppose -- suppose a man which in the end, he belong to a sect and the others didn't like it, they were so much against it as frequently the case that they fight about it if somebody's there (Inaudible)

Mr. Edward Hill: Well, I --

Justice Hugo L. Black: -- then created a disturbance.

Mr. Edward Hill: -- I think then you want to get those people out of the way who -- to create --

Justice Hugo L. Black: Alright.

But --

Mr. Edward Hill: -- that is --

Justice Hugo L. Black: -- what's the difference in that case and this one then if these people had a constitutional right to do what they would do?

Mr. Edward Hill: These people came there to test these facilities and as soon as they found that they -- would deny them as they alleged which we don't admit.

We admit only that the restaurant was closed but not close for the purpose of denying them anything.

Then it is our position that they should seek other and more orderly judicial remedies.

The preamble to the Constitution says that we are here to, where is my recitation here --

Justice William J. Brennan: Domestic tranquility.

Justice Hugo L. Black: Domestic tranquility.

That's right.

Mr. Edward Hill: Domestic tranquility and that comes before any of the ordinances.

And we --

Justice Hugo L. Black: But --

Mr. Edward Hill: -- say it -- that's their duty.

Justice Hugo L. Black: And also some other things that it says people shall have the right to do.

Mr. Edward Hill: I agree with that.

Yes.

Justice Hugo L. Black: Now, of -- do you have any law -- do you have any law that specifically and pointedly find that everybody without regards to race or color tries to regulate your streets or tries to regulate your places so that not more than eight people should be gather there to place might congest to -- for some purposes of that kind (Inaudible) special law.

Mr. Edward Hill: I could -- I could only -- let me see.

Our law is the one in which we -- we are here about, sir, which says if -- if questions of -- if any person or persons of --

Justice Tom C. Clark: Where -- where you reading?

Mr. Edward Hill: Sir?

Justice Tom C. Clark: Where -- where you --

Mr. Edward Hill: I'm reading from the City Ordinance Section 23-4.1 on page 3 of the respondent's brief.

Justice Hugo L. Black: That's the one that says you must (Inaudible)

Now, that doesn't come in here because you say they were not there.

What you say is that they come under the brief by even though they are exercising a constitutional right, they can be all in a way because somebody else might object to the exercise of their constitutional right so strongly that they might in the (Inaudible)

Mr. Edward Hill: Well, we -- we attempt to relate this statute back by saying that -- that when the -- the circumstances are such that and then people reasonably constituted in the community who have -- who -- who sought and have their feet on the ground, when they -- when it's in the opinion of those people, your mayor and your alderman and the like that they are convinced that the assembly of these persons will tend to create a disturbance and they do not disperse, then they are guilty of disorderly conduct.

Justice Hugo L. Black: That maybe that you are right but that --

Mr. Edward Hill: And then that relates back.

Justice Hugo L. Black: -- amounts to this.

That amounts to this.

I call your attention to the fact and it seems to me is the issue you have to meet.

That if an exercise of a plain constitutional right, then they earn people who have their feet on the ground as you say --

Mr. Edward Hill: Yes.

Justice Hugo L. Black: -- afraid that somebody else in the community will so hardly disagree with them that they may get into fight and create a disturbance that then the officers can arrest the people who exercise their constitutional right.

Mr. Edward Hill: Let -- let me say here that in a case known as Poulos versus New Hampshire and it's not in my brief because I was tipped off in a magazine yesterday, a little bit, what is the law.

Justice Reed said, "Delay is unfortunate, but the expense and annoyance of litigation is a price citizens must pay for the life in an orderly society where the rights of the First Amendment have a real and abiding meaning."

And we contend that for the society to remain orderly, these people should pursue other methods than this assembly method.

And there must --

Justice Hugo L. Black: (Voice Overlap) Constitution says something about the right of peaceful assembly.

Mr. Edward Hill: That's correct.

I agree with you on this.

But the assembly can become but not so peaceful by the continued --

Justice Hugo L. Black: What -- if the assembly itself -- do you charge here that the assembly itself became non-peaceable?

Mr. Edward Hill: Tended to create --

Justice Hugo L. Black: I am not talking about that.

Do you contend that there was any attendant in the world on the part of the assembly itself to become non-peaceable?

Justice William J. Brennan: Were these ministers and rabbis, in others words, were they acting in a way that appeared (Inaudible)

Mr. Edward Hill: I would say, Your Honor, that they were acting in a manner in which rabbis usually do not act (Inaudible)

Justice William O. Douglas: Where they aren't?

Mr. Edward Hill: As I will -- as I pick out counsel on the other side chartered our court for saying -- they said, "These people came a thousand miles to be deprived of something that they had at home." This -- this was a desire --

Justice William J. Brennan: Well, that's -- that's really the crux of it, isn't it?

Mr. Edward Hill: Sir?

It might be.

Alright, sir.

Now, they continue to mill around and everything in this particular --

Justice Hugo L. Black: What do you mean by mill around?

Mr. Edward Hill: Moving around.

The -- one of the officers testified that -- that they went in groups here and there.

They hurdled in caucus (Voice Overlap) --

Justice Hugo L. Black: Is it against -- do you have any specific special statute aimed at people milling around that way?

Mr. Edward Hill: No, sir.

No, sir.

I do not.

Justice Hugo L. Black: So they were not violating any law there?

Mr. Edward Hill: Nothing.

No, sir.

But the overall, and as I say, our position is that the overall continued activity there tended to create a disturbance.

I'd say --

Chief Justice Earl Warren: By whom?

Mr. Edward Hill: Sir?

Chief Justice Earl Warren: By whom?

Mr. Edward Hill: By those people.

Let's come back to the issue of the airport cancellations of airlines reservations and so on.

Chief Justice Earl Warren: Was that a disturbance?

Mr. Edward Hill: I would say so, yes, sir.

Suppose that I wanted to make a trip by an -- on an airplane and I called in back and sir, I'm sorry we are filled and these people here concertedly reckon and break in reservation so that I cannot fly.

That disturbs me.

I may not associate it directly (Voice Overlap) --

Justice Hugo L. Black: Do you have any law against that?

Mr. Edward Hill: No, I would say --

Justice Hugo L. Black: I -- it -- maybe that you should pass a law which says, I'm not sure, that people should not cancel their reservations but you don't --

Mr. Edward Hill: No.

Justice Hugo L. Black: -- have one.

Mr. Edward Hill: No, I do not.

There's no law that they cannot but the -- the fact that they do if it tends to create a disturbance, we have that all if it's in the opinion of the officer who was in charged.

Justice Hugo L. Black: That's -- if officer thinks somebody else may get disturbed by it and might get belligerent then you can arrest the people who do it.

Is that it?

Even though they're exercising their constitutional rights.

Mr. Edward Hill: If they're exercising -- I don't believe I can quite answer that to your satisfaction, sir.

Justice Hugo L. Black: But we had a case somewhat like that in Connecticut where one of the Jehovah's Witnesses was using -- for the strong language against the religion and the argument was that people with that faith were allowed to come up and have a fight with them.

At that poll, they could arrest the people for advocating their religion and the (Inaudible) can do that suddenly on the broad over all statute.

Sometimes it -- it might be wise in trying to curve conduct, try to curve the conduct except specifically on reasonable grounds rather than by big statutes.

It might be more effective.

Mr. Edward Hill: Well, we -- we can't manufacture here facts (Inaudible).

And -- and we -- we've been through that in every lawyer who comes up here is -- is truly if he tries to.

Now, the only thing that we can say is -- in the record where it speaks and citing again Justice Clark in his dissent, it's our duty to consider the context in which the arrests were made.

And that context is in the record.

And further, citing from that is a dissent and I -- I don't always like to cite from dissents but Judge -- Justice Clark said that this arrest, that is in Edwards, occurred only after situational roles in which the law enforcement officials on the scene considered that a dangerous disturbance with eminence.

Chief Justice Earl Warren: Would you asked us to overrule Edwards or do you say that that dissent overrules Edwards?

Mr. Edward Hill: I don't say they it overrules Edwards.

But I say it -- that is -- is good law.

He thought so.

Chief Justice Earl Warren: But what you do with -- what do you do with Edwards?

Mr. Edward Hill: I think --

Chief Justice Earl Warren: (Voice Overlap) --

Mr. Edward Hill: -- Edwards is distinguishable in that these people are in South Carolina did not have an opportunity to fully and completely express themselves and they would deny that there.

Chief Justice Earl Warren: You appeal that the -- the opinion did not reach the merits of the case but the dissent did?

Mr. Edward Hill: No, sir, I didn't -- I didn't say that.

I said that the factual situation between the two cases involves a prolonged period of time and -- and if -- if Edwards had -- had those people stayed down there for hours and hours and days and days and -- and constituted a tumultuous or turmoil situation in that community, then you might have considered it differently, I don't know.

But we are asking you here to affirm this decision -- affirm this decision by our Circuit Court.

Here, after these people have been given every and ample opportunity to express their views.

And then when the community becomes involved, we think that they ought us pursue other and peaceful and lawful methods.

And there are others court review and the like.

In answer to the question that was raised about the interstate commerce clause, we feel and we do not admit that the interstate commerce clause is involved in this thing.

The testimony of the Eastern Airlines manager himself under -- under cross-examination, I believe it was, testified that the tickets were cancelled.

The only thing I can do is to rely on that.

The tickets were cancelled according the Eastern Air and will and they say so.

The fact that I've got an Eastern Airline ticket in my briefcase, it's over there, doesn't bring me within the purview of the interstate commerce clause for every activities that I might have become engaged in -- here in Tallahassee -- I mean here in Washington.

So we urged that -- that the essential elements of defense have been proved as they were set out in the information.

That it was a lawful exercise of the police power when there was imminent danger of a right to aboard public brawl, quoting again from Mr. Clark -- I mean Justice Clark.

And we urged that -- that no expressed activity of persons that cause breaches of the peace should be considered free speech that they -- that if they get into the realm of causing breaches of the peace and disturbance that they should use other lawful and peaceful methods.

This is an unlawful assembly and I don't think the question of unlawful assembly in factual situation to this kind and a tense situation to this kind had been presented to this Court, breaches of the peace, disorderly conduct and nevertheless, other charges have been printed -- presented in other --

Justice Hugo L. Black: Is it your idea that it was unlawful before --

Mr. Edward Hill: Sir?

Justice Hugo L. Black: -- that the -- is it your idea that it was unlawful before the policemen ordered them to disperse or after which or both?

Mr. Edward Hill: I will have to say both and then I probably going to say for granted, sir.

Justice Hugo L. Black: I think that's right.

Justice John M. Harlan: How can you say that the (Inaudible) granting everything you say that the statute is so vague that these petitioners correct me if I understood, to reasonably understood raising a kind of conduct which would show in that case.

Mr. Edward Hill: Well, Your Honor -- let me see -- I -- I would say in -- in answer to that that -- that people has a whole don't -- no what a statute contains.

And they -- the average citizen is forced to rely on the guidance and direction of -- of officers and when the thing is explained to them, then they should take Congress (Inaudible)

Now, it might be that they are aware into that (Inaudible) -- it might be that they are aware that they are trading on a rather dangerous grants.

But for definition purposes, I ran into a matter that cited in my brief on page 17 that says, "Few words possess the precision of mathematical symbols.

Most statute must deal," this is Boyce Motor Lines versus United States, "must deal with untold and unforeseen variations and factual situations in the practical necessity discharged in the business of Government inevitably limits this specificity with which legislators can spell out prohibitions."

And it goes on and it say, "Nor is it unfair to require that one who deliberately goes close to an area of proscribe conduct shall take the risk that he may cause the line."

And that's -- that's the position here.

May it please the Court.

Justices, I'd like to yield the rest of the time to my colleague, to Mr. Rhodes.

Chief Justice Earl Warren: Mr. Rhodes.

Argument of Roy T. Rhodes

Mr. Roy T. Rhodes: Mr. Chief Justice and gentlemen.

If I might address myself an issue to the question raised by Justice Black, dealing with the Edward decision from Carolina in distinguish, if I may, the application of the theory expressed by Justice Clark, not denied by the majority of this Court in the different set of factual situation that we have in this instance.

In the Edward decision, you say that under the circumstances that this group of demonstrator were arrested that they were denied the exercise of federal constitutional rights.

Now, those demonstrators had arrived at a place before the building the house of legislation of that State and it had been there from all late that morning for a period of maybe an hour, the best I could determine from the record.

During that period of time, the temperature within which they found themselves had changed to some degree.

But nonetheless, they had continued to exercise what you recognize is their right of free speech and freedom of assembly.

Then, the officer in charge or the responsible person charge with the preservation of peace to that community determined that they continue exercise of that right that you recognized constituted a breach of the peace, the majority of this Court said no.

That -- that did not constitute a breach of the peace that it constituted the continued exercise of a constitutional right which you recognized and therefore, reversed the decisions.

Our position is that in the language expressed by Justice Clark in the dissent in that case that he recognized something that this Court has not declined to recognize, that is a corresponding responsibility and a corresponding constitutional duty on the part of those charged with the preservation of peace and tranquility within a community irrespective of the exercise of a constitutional right of an individual.

Under the ordinance in question in the City of Tallahassee, the ordinance provided that within the opinion of those charged under the ordinance with carrying in to force in effect, they work of the opinion and concerned with the breach of the peace that is the assembly of the such person would tend to create a disturbance.

That mean the language of the statute.

That's not fraud, nebulous language but rather specific language that somebody under the terms of the ordinance is charged with the responsibility of carrying out.

Now, when, under those circumstances, that law enforcement officer determines that the continued assemblage of persons would tend to create a disturbance or to incite a riot or other disorderly conduct and so forth, that it becomes an unlawful assembly.

That's a very specific charge.

And factually in the instance before the Court, we have a situation in which the petitions exercised this right, not for a matter of an hour or hour and a half or half a day but from about the middle of day on Thursday when they got to Tallahassee until the back in the middle of the following day when they were ultimately arrested.

You have a record which reflects the change during that period of time of some 24 hours of the temperature and atmosphere within which they had, 24-hour period, been exercising that right.

What we are saying is that the exercise of a constitutional right are the continued pursuit of what is initially a lawful pursuit can become an unlawful pursuit or can become the abuse of a constitutional right in light of a specific ordinance or a corresponding constitutional duty placed upon those charges of responsibility of preserving the peace and tranquility within the community.

Justice Hugo L. Black: Why was it disturbing here if it didn't disturb -- if they were --

Mr. Roy T. Rhodes: Sir?

Justice Hugo L. Black: Why was it disturbing here if they were peaceable and --

Mr. Roy T. Rhodes: Why was it disturbing --

Justice Hugo L. Black: -- and (Voice Overlap) --

Mr. Roy T. Rhodes: Well, there are a number of reasons as to why it was disturbing the community.

Not the least of which is that this was an unusual course of conduct and actions to be carried on within Tallahassee, Florida for a period of 24 hours.

Now, that's just the factual truth in the circumstances.

And if that be so, then the --

Justice Hugo L. Black: You are afraid to disturb people to anger --

Mr. Roy T. Rhodes: Sir?

Justice Hugo L. Black: -- or create unrests among the people, is that it?

Mr. Roy T. Rhodes: Was it tending to do that, sir?

Yes.

Justice Hugo L. Black: You're afraid that what it would do.

Mr. Roy T. Rhodes: That was the opinion expressed by the officers that made the arrest, yes.

Justice Hugo L. Black: That's -- that's your own -- that your basis for your statute on that that Edwards says that you can't do that.

It said, if South Carolina had made a defense, they made a conviction of them that that peace there disturb people to anger, invited public dispute have brought about other condition of unrest.

Mr. Roy T. Rhodes: Yes, sir.

Justice Hugo L. Black: That's what you are saying, isn't it?

Mr. Roy T. Rhodes: No, sir, that's not what I'm saying, sir.

In that --

Justice Hugo L. Black: What then (Voice Overlap) here?

Mr. Roy T. Rhodes: -- situation -- in that situation, you had people that were present there for a period of -- of an hour or an hour and a half.

Justice Hugo L. Black: Well, what (Voice Overlap) --

Mr. Roy T. Rhodes: In our situation, you have an hour (Voice Overlap) present for --

Justice Hugo L. Black: -- two days?

Mr. Roy T. Rhodes: -- 24 hours and I think there's a substantial difference.

I think the exercise of a constitutional right or a lawful right can become unlawful with its continued exercise in circumstances that are changing from the inception of the exercise of that right.

Justice Hugo L. Black: It would be pointed out that the statute brought the name that preventing congestion of the streets.

It was a name that saying you can't do certain things at certain time.

But it was simply has, your statute seems to be, appear that what they were saying whether they said that an hour or two days would disturb people to anger, create disputes and make them mad because of the views that they expressed.

You say if it's done an -- a day, it's constitutional, you can stop it but if it's an hour, it can't be stopped?

Mr. Roy T. Rhodes: No, sir.

I'm attempting to differentiate factually with the situation before the Court in this case and the facts that were before the Court in the Edwards case.

In that case, the facts involved are short span of time and the --

Justice Hugo L. Black: Suppose a man preaches four hours instead of an hour, would that make a difference?

Mr. Roy T. Rhodes: It foreseeably could, Your Honor, yes.

Saying -- saying things at the beginning of a -- of a sermon, for instance a four-hour sermon in a situation --

Justice Hugo L. Black: You might not like it.

Mr. Roy T. Rhodes: -- in a situation in which we'll say nine people were present and saying things four hours later when 500 people maybe present and there maybe all other kinds of activity going on could constitute the unlawful exercise of that which we lawfully (Inaudible)

We (Voice Overlap) --

Justice Hugo L. Black: I don't want -- I don't want you to get misunderstand what I'm saying I think that you have presented the issue as it is --

Mr. Roy T. Rhodes: Yes, sir.

Justice Hugo L. Black: -- but -- with reference to your case.

Mr. Roy T. Rhodes: Yes, sir.

And accordingly, we feel that for the preservation of peace in any community that it's necessary that this Court recognize the corresponding responsibility in those that are charged with the preservation of peace in the community to recognize the rights of individuals within that community.

But in so doing to recognize those individual rights in such manner that the rights of the other members constituted in that community are likewise recognized so that violence is not performed to the rights of either, the Court of Appeal that the conviction should be affirmed.

Chief Justice Earl Warren: Mr. Rachlin.

Argument of Carl Rachlin

Mr. Carl Rachlin: Mr. Chief Justice and members of this Honorable Court.

I wish to thank the Court for the privilege of submitting a supplemental memorandum.

As a non-member of the Florida Bar, I must confess to the difficulties of trying to understand the vagaries of the Florida appellate procedure appeared in this case at about a late date but I have great concern for the petitioners here in this general counsel for the organization which sponsored their trip where there's one that may be known to some of you the Congress of Racial Equality.

In any event, I would like to suggest one-forth which we will brief in this -- in this memorandum to permit me to draw the analogy of Fay against Noia.

At the time the petition was filed with this Court, there was no other place they could go.

The petition for certiorari to this Court was timely filed in that limited sense.

The time to file such a petition had already expired in the Florida court.

There was no possibility of any remedy in the Florida court.

And if I understand, the reasonable inferences of Fay against Noia and I say -- suggest you expand this argument perhaps in a -- of memorandum.Despite the laps of some 20 years in that case, this Court undertook to entertain the petition for habeas corpus even though all the remedies that may have been available to the petitioner in Fay against Noia had not been exhausted in the State of New York.

But as I suggest, we will try to develop this argument at some greater length.

Now, it is our position --

Justice William J. Brennan: (Inaudible) may I -- may I suggest that I thought Fay and Noia tried carefully to draw the line between jurisdiction on direct review and the jurisdiction of a federal habeas corpus put on -- on collateral.

And what we're dealing with here is I -- this Court's jurisdiction to hear this case at all on direct review of the Florida courts when the avenues of appeal and suggestion is at least these had not been exhausted that they should have been in the Florida court.

Mr. Carl Rachlin: Your Honor, I recognize there is that distinction and this is something we will have to attempt to persuade you in this memorandum, not we are going to have -- we would in 10 days.

With regard to the few comments I would like to make with regard to the merits of this proceeding.

It is our -- adopted -- it is our position to (Inaudible) if it should have been read at all, it's read to the wrong people.

This case and the similar ones that have appeared before this Court, and once that I have tried in some of the other States in the United States, always seem to turn on a kind of blackmail theory of law.

If I don't like what you have to say, I get up a crowd, I make noise and then I'm arrested for disorderly conduct or as in the case here for a violation of the -- of the so called riot act.

This -- we -- we suggest that this approach is really part of the discriminatory segregation attitude of the community.

And I -- I would like to refer this Court to -- to page 18 of the respondent's brief in this Court because while the comments are entirely irrelevant to a legal proceeding, they illustrate perfectly the state of mind that was gathering together against the petitioners in this case.

And I read from the top of the page, part of this brief is written on August 28th, 1963.

As one of the riders was reading the morning papers under a byline of a national news syndicate, the main headlines refer to the mass march of certain persons, predominantly negro who are marching in groups of thousands of persons on Washington D.C., the capital of this country, in protest and to demonstrate.

Certainly, but no orderly purpose other than to show some type of brute or political strength.

Respondent urges that such a demonstration and protest is an unlawful assembly.

Now, this, of course, is quite irrelevant to this proceeding.

But I think it shows the state of mind of the public officials of Tallahassee.

They were -- it is clear that anything that the petitioners did in this case, anything they did at all, their mere presence in an integrated group would have -- would have been flamed the community and they were going to arrest them.

The same thing happened in our -- one of our previous cases, Taylor against Louisiana, where the negroes in the bus station at Shreveport -- I think the only other freedom right case that has come to this Court on the merits, the same type of situation arose.

And of course, this Court has spoken in Garner against Louisiana on a similar type situation where the guinea pig becomes the crime -- the committer of the crime because he is roasted.

This is really what have comes down to.

Mr. Rhodes said a moment ago that it was his view that when in the opinion of those carrying out the ordinance, the assemblage would tend to create a disturbance that becomes unlawful.

We suggest, and I suggest in closing, that if these were the law, we would have a literal police state in the United States.

I think the cases of this Court, as well as in many other higher courts, have previously decided that there is a right upon the part of the citizen to refuse to obey an illegal order of a police official.

Since no acts of any kind are shown in this record of any illegal conduct on the part of these petitioners, I think based upon the previous decisions of this Court, that the petitioners had the right to refuse, to obey the illegal order of the policemen.

If they do not have that right, then we have a police state.

With that, I trust the Court will forgive if I don't use all the time that is available to us but we will perhaps exercise that right by the supplementary memorandum.

I wish to thank the Court for the opportunity herein.

Featured:

Clay v. Sun Insurance Office - Oral Argument, Part 1

Thu, 29 Nov 2012 22:23:26 +0000

Case:

Clay v. Sun Insurance Office

Media File:

349_19600322-argument-1

Related Transcript:

349_19600322-argument-1

Transcript:

Argument of Paschal C. Reese

Chief Justice Earl Warren: Number 349, John Clay, Petitioner, versus Sun Insurance Office Limited.

Mr. Reese, you may proceed.

Mr. Paschal C. Reese: May it please it Court.

May I have permission to request that Mr. Robert J. Kelly, Assistant Attorney General in the State of Florida.

In the place of Richard W. Ervin, Attorney General in the State of Florida, appearing -- amicus curiae and this case to be allowed to use 10 minutes of my allotted time?

Chief Justice Earl Warren: You may.

Mr. Paschal C. Reese: Thank you.

If it please the Court, this is a case in which John Clay, in -- in April 1952, being a citizen of the State of Illinois, purchased a Personal Property Floater Policy, through the agent of the respondent, Sun Insurance Office Limited, in Chicago and paid at that time, a three-year premium.

About six weeks, after the purchase of the policy, the petitioner, together with his family, moved to the State of Florida and soon thereafter, purchased property in Palm Beach County, Florida, near the City of Clewiston and lived and resided in Florida continuously from May or -- from May or June of 1952, until the damage claimed -- occurred in the fall of 1954 and January of 1955.

A claim was filed under the floater policy -- Personal Property Floater Policy, claiming that certain property had been stolen and a certain other property had been destroyed and that vandalism had occurred to certain photographs and pictures.

Justice Felix Frankfurter: Could you -- could you tell us when the policy was issued and where?

Mr. Paschal C. Reese: Yes, sir.

The policy was issued on April 22, 1952, in Chicago.

Justice Felix Frankfurter: And the insured was then living in Chicago?

Mr. Paschal C. Reese: Yes, sir.

The insured was living in Chicago.

The policy was dated the 22nd of April, 1952.

And I think it's important to bear in mind that at that time for the benefit of the insurance company and, of course, some benefit for the petitioner, that a premium of three years was paid, which paid the policy up until -- or the premium of the policy to April 22nd, 1955.

Justice Potter Stewart: And this policy from its inception covered the -- whatever losses it did cover to property anywhere in the world?

Mr. Paschal C. Reese: Yes, sir.

Justice Potter Stewart: If owned by (Voice Overlap) --

Mr. Paschal C. Reese: It's a world-wide policy.

All of the property of its petitioner was moved to the State of Florida and the -- the damage occurred in the State of Florida.

In answering the complaint which was admitted and filed more than one year after the insurance company had refused to -- to honor the claim.

Justice John M. Harlan: Was the insurance company qualified to do business in Florida at the time the policy was issued?

Mr. Paschal C. Reese: Yes, sir.

Yes, Your Honor.

Justice John M. Harlan: At the time the policy was --

Mr. Paschal C. Reese: At the time the policy was issued, they were qualified to transact business in Florida.

The policy, itself, contained the usual clause that all of these policies have to the effect that a suit must be brought within 12 months following the discovery of the loss, but it goes ahead -- goes on with the -- provided however, that if for the laws of the State within which this policy is issued, such limitation is invalid, then that suit clause in the policy becomes invalid.

Now, the State of Florida, had a statute --

Justice Felix Frankfurter: What -- what is that clause again, the one you just said?

Mr. Paschal C. Reese: Provided however, that if by the laws of the State within which this policy is issued.

Justice Felix Frankfurter: Is issued?

Mr. Paschal C. Reese: Yes, sir.

Such limitation is invalid.

Then, the suit clause, requiring suit within 12 months, is invalid.

The State of Florida has the statute Section 95.03, at the time the suit was --

Justice Felix Frankfurter: I'm -- I'm sorry.

I didn't get that.

Why should -- this -- this policy was issued in -- in Illinois, in Chicago?

Mr. Paschal C. Reese: Yes, sir.

Justice Felix Frankfurter: And what -- what you've just read said that, if such a clause or years -- that suit must be brought within a year?

Mr. Paschal C. Reese: Yes, sir.

Justice Felix Frankfurter: Is that -- is that invalid in any State in which it is issued?

Mr. Paschal C. Reese: Yes, sir.

Justice Felix Frankfurter: Well, then, it wasn't issued in Florida, was it?

I mean --

Mr. Paschal C. Reese: No, sir.

It was not issued --

Justice Felix Frankfurter: What is their clause --

Mr. Paschal C. Reese: -- by a committee there.

Justice Felix Frankfurter: What does that clause mean?

Justice John M. Harlan: I suppose the standard form of contract, if the policy had been issued in Florida, why, Florida would've made that clause invalid?

Mr. Paschal C. Reese: Yes, sir.

That's --

Justice Felix Frankfurter: That is -- that is the -- the insurance companies do business in many States and this is a form of contract so that they don't have to have a special printing for Florida or Georgia or whatever it is, is that it?

Mr. Paschal C. Reese: That's right.

Justice Felix Frankfurter: That is -- all right.

Mr. Paschal C. Reese: That's what it's for.

Now, on the Section 95.03 of the Florida statutes of 1957 and also 1959, which have just been issued, any clause in a contract as affecting a reduction in the Florida statute of limitations is invalid and shall not be recognized by any court within the State.

Justice Felix Frankfurter: Was that -- did you say 1957, that such a statute was passed?

Mr. Paschal C. Reese: No, sir.

The statute was originally passed in 1913.

What I refer here, the Section 95.03 of the Florida statutes --

Justice Felix Frankfurter: If I may --

Mr. Paschal C. Reese: -- in 1957.

Justice Felix Frankfurter: That's just what is.

Mr. Paschal C. Reese: And then it was reconfirmed by the legislature so --

Justice Felix Frankfurter: What are the --

Mr. Paschal C. Reese: -- and the statute is 1959.

This case based upon the Florida statute was brought in the United States District Court for the Southern District of Florida.

Following an effort to dismiss the case and also following a motion of the summary judgment which was denied by the District Court, the case was tried and judgment was added for the petition.

Following that, various motions were made and denied by the District Court and it was appealed to this Circuit Court for the Second -- Second Circuit.

There, at the argument before the court by 2 to 1 decision, this District Court was reversed on the grounds that by recognizing the Florida's -- the Florida statute and the fact that the -- the suit clause in the contract was a property right that the insurance company had been denied the due process -- had been denied due process.

The State of Florida, since a statute of the State had been, we might say, to a certain extent or declared unconstitutional, has been contrary to the Due Process Clause the Constitution of the United States, then filed a motion for rehearing as amicus curiae, but the rehearing was denied and the matter came to this Court on our petition for writ of certiorari.

Gentlemen, may it please the Court, we find only one case absolutely on the point apparently all to the case at bar, and that was the suit in the State of Alabama.

It was the suit of Galliher versus State Mutual Life Insurance Company, 150 Ala.543, 43 So.833.

In this case, in Alabama, there was a policy written in Georgia, of far, a resident of the State of Georgia.

The resident State of Georgia subsequently moved to the State of Alabama and there died.

There were certain reasons why no suit was prosecuted within the 12-month limit and the State of Alabama -- the Supreme Court of the State of Alabama took the position that the State of Alabama had sufficient interest in the -- in the suit so that the statute of Alabama, which is parallel to that of Florida and is quoted as the Alabama Code of 1896, Section 2802, so that the -- the laws of Alabama would control rather than the laws to the State of Georgia.

It is our contention that the State of Florida had a final interest and such an interest in this matter to where the laws of the State of Florida should control, rather than the laws of the State of Illinois in the case at bar.

The policy while written in the State of Illinois, within two months, became the property of the resident of the State of -- of Florida.

All the property was in the State of Florida.

The loss took place in the State of Florida.

The respondent was qualified to transact business within the State of Florida.

The investigation by the insurance people was made within the State of Florida and the denial of -- of the claim was made within the State of Florida.

Now, the respondent had claimed that the only thing that -- the only interest that the State of Florida had in this -- there was the payment of the loss, if the loss had been paid.

Certainly, if a resident of the State of Florida -- if the policy had been purchased in Florida, it could've had no more interest than they have under this policy.

And under the public policy of the State, which is definitely set out in Section 95.03, Florida has a right to protect a citizen of the State against a clause in any policy where -- that maybe written, which is prohibited within the State of Florida.

Justice Felix Frankfurter: You're assuming, are you not that that -- the Florida statute applies to this situation?

Mr. Paschal C. Reese: Yes, sir.

Justice Felix Frankfurter: Well, how do we know that?

The Court of Appeals didn't decide that and there's no Florida case deciding it.

Mr. Paschal C. Reese: No, sir.

But the State of Alabama has decided it.

Justice Felix Frankfurter: Yes, I know, but Alabama isn't Florida.

Mr. Paschal C. Reese: The State of Florida has said --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Paschal C. Reese: -- our laws --

Justice Felix Frankfurter: Both States would agree to that.

Mr. Paschal C. Reese: The State of Florida has said --

Justice Felix Frankfurter: (Voice Overlap)

Mr. Paschal C. Reese: -- in our laws apply to insurance contracts within the State of Florida.

Justice Felix Frankfurter: Yes, but they haven't said they applied to insurance contracts written outside the State, but are then residents of the riding States.

Mr. Paschal C. Reese: They haven't said so that they did.

Justice Felix Frankfurter: Pardon me?

Mr. Paschal C. Reese: They haven't said that the contract did this.

Now, it's been definitely decided.

Justice Felix Frankfurter: That's -- that's the point I'm putting here.

That's the point I'm putting to you.

That all we know, the Florida Supreme Court might decide that that isn't the law, but that the statute is not to be applied to this situation.

Mr. Paschal C. Reese: I don't see how they could, sir.

Justice Felix Frankfurter: All courts do strange things, won't they?

Mr. Paschal C. Reese: [Laughs] For the simple reason that the -- that the general law, I think, is clear.

And where the State has sufficient interest in the -- in the contract and in the enforcement of the contract, that the law of the forum will control.

Justice Felix Frankfurter: But this Court has decided in some cases, where you could observe exactly that -- that it wouldn't be even constitutional to do that.

Mr. Paschal C. Reese: If this Court decided in a case which was cited by the District Court, Delta & Pine Land case, which the District Court assumed was a similar case when it was not.

The Delta & Pine Land case dealt with a surety bond.

The surety bond required that a suit must be brought at -- no, that -- that notice of defalcation should be given within 15 months after the expiration of the suretyship.

It said nothing about the date for a suit to be started.

Now, it did have a 12-month clause after the notice was given.

Justice Felix Frankfurter: No, but this notice of -- this requirement of notice was against the law of Mississippi, where a suit was brought.

And the Mississippi Supreme Court said that's all right.

Mississippi law governs.

Indeed, the insurance company was actually -- had its main office in Mississippi.

And this Court said that that couldn't constitutionally be done.

I'm not saying there's an exact case, but it's a case that was possibly going to be less sure that your Supreme Court might hold that this statute is not applicable to this situation.

I'm not saying it would, but I guess I'm less sure than you are that it would be, anyhow we don't know, do we?

Mr. Paschal C. Reese: No, Sir.

But we do know this that the -- that the Delta & Pine Land case did not involve a -- a suit clause.

It involved a notice that -- that a defalcation had taken place.

And that was not given until many months after the --the surety had ceased to exist.

Justice Felix Frankfurter: Yes.

And Mississippi said that was against its policy.

Mr. Paschal C. Reese: Well, sir --

Justice Felix Frankfurter: Therefore, it was used to enforce it.

And this Court said it couldn't change the contact which had been written elsewhere.

Mr. Paschal C. Reese: I think though that there's great deal of difference between --

Justice Felix Frankfurter: I --

Mr. Paschal C. Reese: -- changing of contract to that sort and changing one where it's a matter of public policy that the suit must follow the statute of limitations.

Justice Felix Frankfurter: Well, but --

Mr. Paschal C. Reese: Now, that had nothing to do with the statute of limitations --

Justice Felix Frankfurter: Am I wrong in thinking that questions of notice, giving notice within a limited time and bringing (Inaudible) have not unrelated purposes.

They're directed towards similar -- with similar concerns namely, the early period during which of -- the insurance company should know in order that it may adjust itself to what is relevant in keeping reserves, the claims outstanding, the relation of the premium to the claims outstanding into the reserves, etcetera, etcetera.

But notice and the statute of limitation do not deal with such different matters, subject matters, but you can say the Delta case has no relevance to this problem, can you?

Mr. Paschal C. Reese: Unless the statute of limitations say that it -- that a -- a person can sue within a certain period of time, on an act -- under a contract in the various statutes of limitations.

Justice Felix Frankfurter: Of giving notice within the given period of time is a form of the statute of limitations.

It cuts off the right to bring an action unless you give notice.

Mr. Paschal C. Reese: That's true, sir.

But at the same I don't -- I -- I differentiate between that and the -- the suit clause in this policy.

I think the State of Florida has sufficient interest in the -- in this manner --

Justice John M. Harlan: I know --

Mr. Paschal C. Reese: -- to where its interest calls upon the State of Florida and allows the State of Florida to assert its public policy.

Chief Justice Earl Warren: You may take the -- the remainder of the time, if you wish, to and that we'll leave 10 minutes for Mr. Kelly tomorrow.

You, if you wish, take the three minutes that's left, or have you finished?

Mr. Paschal C. Reese: I was going to take the time --

Chief Justice Earl Warren: You may -- you may take it.

Mr. Paschal C. Reese: -- Mr. Justice, to -- on rebuttal, but if I want to have three minutes, I probably won't.

Chief Justice Earl Warren: Well -- no, I wonder -- give counsel his 10 minutes --

Mr. Paschal C. Reese: Yes.

Chief Justice Earl Warren: -- but we'll -- we'll -- you may start in the morning, Mr. Kelly.

We'll adjourn now.

Featured:

Clay v. Sun Insurance Office - Oral Argument, Part 2

Thu, 29 Nov 2012 22:23:26 +0000

Case:

Clay v. Sun Insurance Office

Media File:

349_19600323-argument-2

Related Transcript:

349_19600323-argument-2

Transcript:

Argument of Robert J. Kelly

Chief Justice Earl Warren: John Clay, Petitioner versus Sun Insurance Office Limited.

Mr. Kelly, you may proceed with your argument.

Mr. Robert J. Kelly: Mr. Chief Justice and may it please the Court.

Yesterday, at the close of the presentation of Mr. Reese, Mr. Justice Frankfurter posed a question as to whether or not we thought the State of Florida would apply its statute of limitation.

Justice Felix Frankfurter: Did you say would -- did you say wouldn't?

Mr. Robert J. Kelly: Would apply.

Justice Felix Frankfurter: My question was not whether it would, but it is has it done so?

Mr. Robert J. Kelly: It has not done so in fact to an out-of-state contract.

However, in the case of Hoagland versus Railway Express Agency, 75 So.2d 822, it's in the reply brief, there the Court --

Justice Felix Frankfurter: 75 Southern?

Mr. Robert J. Kelly: Second, appears to have --

Justice Felix Frankfurter: Page?

Have you got the page?

Mr. Robert J. Kelly: 822, appears to have applied the spirit of the statute that's under discussion.

Florida has a statute number 9506 which is a suit savings clause where a plaintiff wins in the lower court, loses on appeal, within one year he may bring a new suit.

In the New York Shipping contract involved in that case, there was a provision that suits must be brought within two years.

The Florida Supreme Court held that that contractual provision must give way to the Florida statute.

So, they applied the statute, the saving statute of limitations to that situation.

That is the only direct --

Justice Felix Frankfurter: Have you stated all the circumstances of the situation?

Is this a contract made outside of the (Voice overlap) --

Mr. Robert J. Kelly: This was a contract made as far as the --

Justice Felix Frankfurter: -- outside of Florida?

Mr. Robert J. Kelly: It was made outside of the State of Florida.

Justice Felix Frankfurter: By persons then outside of Florida, by non -- at the time, a non citizen of Florida?

Mr. Robert J. Kelly: No.

This person was a citizen of the State of Florida, shipping -- shipping goods into Florida.

Justice Felix Frankfurter: For me, that's a very different story.

Mr. Robert J. Kelly: I wanted to merely call your attention to the case si.

Justice Charles E. Whittaker: (Inaudible)

Mr. Robert J. Kelly: That is correct.

That's my understanding of the case, sir.

Justice Charles E. Whittaker: (Inaudible)

Mr. Robert J. Kelly: It is my understanding that it was outside of the total contract provision of two years in which two years had passed.

Since the institution of the first suit in the opinions of the Circuit Court in this case they relied on apparently relied on three cases pointing out the policy of the State of Florida in connection with its particular statute of limitations.

Those cases were respectably decided in, one in 1917, one in 1918.

Only one of the three dealt specifically with the statute of limitations.

That was decided in 1920 and dealt with this particular statute.

This is in 84 Southern 171.

It's a Sovereign Camp, Woodman of the World versus Mignon.

In that case, a foreign contract merely by delivery through the agent in Florida was held to be under the statute.

The limiting provisions of the statute applied in that instance.

Presently in Florida, it's well known to -- I'm sure the members of the Court we have a tremendous influx of population.

We have persons coming into Florida that on quest we are bringing a great deal of personal property that will be covered and can be assumed by insurance policies of this nature.

It is entirely possible that in once this company does business in Florida that one person may come from an area such as the Chicago area into Florida and at that time by a policy with this company -- particular company.

And nevertheless, next door of this individual in Chicago, the same coverage applies in Chicago based the frame as did Mr. Clay three years in advance comes into Florida.

Both of them sustained a loss.

They have two different, entirely two different limitation provisions as far bringing the suit.

It seems somewhat unreasonable that those men should be differently situated before our Courts.

Justice Felix Frankfurter: May I ask you this question?

Mr. Robert J. Kelly: Yes, Justice.

Justice Felix Frankfurter: As I understood to that, your associate say yesterday this company -- this insurance company, the Sun Insurance Company is authorized to do business in Florida, is that right?

Mr. Robert J. Kelly: They are licensed and authorized and are doing business in Florida.

Justice Felix Frankfurter: That is you can keep them out if you wanted to, but you allowed them to come in?

Mr. Robert J. Kelly: They have registered and qualified with the Insurance Commission of the State of Florida and are presently doing business.

Justice Felix Frankfurter: Could you meet your problem in a very different way to changing the terms of the contract because of the terms of the contract are changed presently but you may change it in view of your local policy, that's true isn't it?

Mr. Robert J. Kelly: I think that is the whole points of what was faced.

Justice Felix Frankfurter: Couldn't you – couldn't you deem with the problems very effectively by conditioning admission of this company or any other company it imply and doing business imply by a requirement that --

Mr. Robert J. Kelly: I think that such a requirement and I think by legislation would be -- would be correct.

Justice Felix Frankfurter: Is there any difficulty about that?

Mr. Robert J. Kelly: I don't think there would be.

Justice Felix Frankfurter: So, are we not?

Mr. Robert J. Kelly: Presently we do not have such a situation.

Justice Felix Frankfurter: I understand that.

All I'm suggesting is that Florida is hopeless or helpless in dealing with the problems which you just – (Inaudible)

Mr. Robert J. Kelly: We are -- that is exactly correct.

We are not --

Justice Hugo L. Black: May I ask you, had Florida could've known -- but the case of the Watts case which this Court decided and it would have to have it to legislation need to pass a law like that in order to get service on these people or to make -- applies laws to the contract?

Mr. Robert J. Kelly: Excuse me.

Justice Hugo L. Black: We had a case of Louisiana several years ago in which questions similar to this came up.

How can anyone assume setting on this bench the legislature applied in view that anyone sitting on this bench would say that they were not doing this because they were not using the right language and none on which they did it.

Mr. Robert J. Kelly: I am at loss to understand your question, sir, forgive me.

Justice Hugo L. Black: Well, I'm just wondering how the legislature of Florida could know would have to meet the condition that just an ineptitude from the bench?

From my --

Mr. Robert J. Kelly: I don't -- I don't know how they suitable -- I know --

Justice Hugo L. Black: I doubt about it and now I rather thought, maybe we have laid it to rest.

Justice Felix Frankfurter: But you read the Watson case, haven't you?

Mr. Robert J. Kelly: I have not.

I'm not familiar with that case.

Justice Felix Frankfurter: Because that suppose Justice Black's question and mine, I think.

Justice Hugo L. Black: There was a -- there was an opinion by eight members, an opinion by concur and they approached the case quite differently.

Mr. Robert J. Kelly: Well --

Justice Felix Frankfurter: May I suggest to you that in the Watson case, it arose in connection of the resident Louisiana citizen.

Mr. Robert J. Kelly: What's that?

Justice Felix Frankfurter: Which you haven't got here.

Justice William O. Douglas: Has this man been a resident?

Mr. Robert J. Kelly: This man is presently a resident, or was a resident at the time the loss occurred.

Justice Felix Frankfurter: Well, he's a resident when the policy was taken.

Mr. Robert J. Kelly: The policy where he was a resident of the State of Illinois.

The facts are different.

Justice Felix Frankfurter: (Voice overlap) --

Mr. Robert J. Kelly: The facts are -- the facts are quite different.

The McGee case, California case decided by this Court appears to be of some assistance to Florida as far as the denial of due process in the application of this statute to the out of the state conflict.

We --

Justice Charles E. Whittaker: you have a question of due process here?

Mr. Robert J. Kelly: Well, there -- there has been a question of due process asserted by the -- I believe in the opinion of the Circuit Court is whether the taking involved if there is a taking is a denial of --

Justice Hugo L. Black: Does the record show whether there was any question raised by the defendant in this case as to whether the statute of Florida applied?

I see an answer which indicates that it might be unconstitutional, but is there one which raised the question and challenged the application of the laws.

The statute applied on grounds that it didn't cover this case?

Mr. Robert J. Kelly: My answer to some of this case was subsequent to the petition for rehearing in the --

Justice Hugo L. Black: Who sat on the case?

Who tried it?

Mr. Robert J. Kelly: Justice -- in the Circuit Court?

Justice Hugo L. Black: Yes.

Mr. Robert J. Kelly: Judge (Inaudible) in the District Court.

Justice Potter Stewart: Where does she has live?

Mr. Robert J. Kelly: In Miami, Florida, Southern District of Miami, but the -- as the question of whether there's a Florida statute should apply, we believe that it is the reasonableness of the change in the contract if that be what it can be called.

The contract provision relates to the beginning of suit, our statute merely postpones the time frames.

It does not destroy any of the substantive provisions so to speak of the contract.

The McGee case indicated that under certain circumstances, it's a context in the State were adequate that a reasonable taking, if that what it legally amounts to, is proper, a limited taking and it is the position of the State of Florida that the taking involved in this situation is reasonable when the fact of the loss occurring in Florida, the fact that the company is authorized and was authorized to do business, at the time they had issued the contract in Illinois, that the contracts used in Florida contained exactly the same provision as the one in Illinois, that the situation can exist where a man who purchases a policy in Florida from the same company ends up with a different -- applying for appearance before the Courts than does the man who brings his personality becomes a resident of the State and brings a contract of insurance in his pocket (Inaudible) through the man.

Thank you.

Chief Justice Earl Warren: Well, Mr. Cotton.

Argument of Bert Cotton

Mr. Bert Cotton: Mr. Chief Justice, may it please the Court.

I would like to first, if I may, to address myself to the question put by Mr. Justice Black with respect to whether or not the Florida legislature would be in a position to be aware of the requirements found to be sufficient in the Watson case.

The legislature of the Florida has two statutes as part of the Florida Insurance Law, wherein they reach out beyond the state borders and wherein in so doing, they have all of the requirements which were found in the Watson case, a full declaration of policy, a full declaration of the evil or problem to be dealt with and a positive assertion of the need and necessity and desire to reach out beyond state borders.

I refer specifically to one -- one of the statutes to which I refer is the very statute that this Court had before it in the McGee case, service on -- on unauthorized insurers who send policies in or do things by mail.

Florida has a complete statute probably word for word in respect to the statute that Your Honors have before you which was a California statute.

I would like to point out further that Florida, its courts have never sought to give their statutes extraterritorial effect except for these instances to which I refer.

There is a case decided by the Florida Supreme Court, a case involving a Florida statute which provides that if a person dies in the State of Florida, leaving life insurance, then there are certain restrictions on the manner in which the proceeds of that insurance maybe payable, must go to wife, children, or certain protection for the family.

In that case, the insurer had procured his policy elsewhere, I believe in Alabama, some other state where there was no such restriction.

He thereafter became a resident of Florida.

He died in Florida and there was a dispute between those who would be entitled to the proceeds of the policy if the Florida statute applied and those who would be entitled to the proceeds if the designation made by the assured was valid.

And the Court said very expressly that although the statute doesn't have any -- anything in it to say it applies only to life insurance policies issued in the State and although the statute says if any person dies in the State leaving insurance, this shall be the rule, nevertheless, it is the law of the place where the contract was made which governs and we have no right to extend our statute outside of state borders to attach itself to such contract.

Justice Felix Frankfurter: Let's see if I understand it?

I understand you to say that Florida has one -- one provision for distribution of a deceased state.

Mr. Bert Cotton: And under a life insurance policy.

Justice Felix Frankfurter: Under life insurance policy that a deceased who was a citizen or resident of -- so far as --

Mr. Bert Cotton: At the time of his death.

Justice Felix Frankfurter: At the time of time of his death had -- was insured in a non-Florida company?

Mr. Bert Cotton: Your Honor, I can't say that it's a non-Florida company.

I'm quite sure that the company must have been authorized to do business in Florida, because it was sued in Florida.

Justice Felix Frankfurter: Under a contract made outside of Florida under a state law of that State which had a different policy or distribution?

Mr. Bert Cotton: The state law or the state law -- the policy was issued had no regulation.

Justice Felix Frankfurter: Had none?

Mr. Bert Cotton: Had none and the designation of beneficiary which the insured had made.

Justice Felix Frankfurter: In the contract?

Mr. Bert Cotton: In the contract, that's right.

Justice Felix Frankfurter: That would've fallen under Florida law?

Mr. Bert Cotton: Correct, correct.

Justice Felix Frankfurter: And -- and your Court held what?

Mr. Bert Cotton: The Florida Court held that --

Justice Felix Frankfurter: Florida Court, I beg your pardon.

Mr. Bert Cotton: That the -- that the statute did not apply and therefore, the insurer's designation of beneficiary remained.

It was not voided by the Florida statute.

Justice Felix Frankfurter: Although -- although a contract made in further which such a designation of the beneficiary would've fallen because of the Florida statute?

Mr. Bert Cotton: Correct, sir.

Justice Felix Frankfurter: Where is that case?

Mr. Bert Cotton: Equitable Life Insurance Society against McRee, 75 Fla. 257, 78 So. 22.

Justice Felix Frankfurter: Well, that's a -- I think the Attorney General mentioned the case in 75.

Rebuttal of Robert J. Kelly

Mr. Robert J. Kelly: 75, Southern Federal Circuit, sir.

Justice Felix Frankfurter: 75 Federal Circuit -- I beg your pardon.

And this is 75 Fla.

and -- and what are the other?

Rebuttal of Bert Cotton

Mr. Bert Cotton: 78 So.

22.

Justice Hugo L. Black: Is the -- is the chart in the Court here before us?

Mr. Bert Cotton: Yes, Your Honor.

Justice Hugo L. Black: It's not in this printed record.

It's in -- I don't see it in the record.

Maybe it's -- that's the reason I was asking you (Inaudible)

Mr. Bert Cotton: Oh, I -- I believe it is sir, I mean --

Justice Hugo L. Black: I thought part of --

Mr. Bert Cotton: There are excerpts --

Justice Hugo L. Black: Yes.

Mr. Bert Cotton: -- from the chart page 25 and 26.

Justice Hugo L. Black: Now, where is the place where you raised the question about the Florida statute?

If it was constitutional to apply, would not be applied in that way by Florida?

Where did you raise that petition in the record?

Mr. Bert Cotton: Well, that was raised in this fashion.

I would submit, the answer --

Justice Hugo L. Black: I read the answer.

Is all the answer in here?

Mr. Bert Cotton: Yes, sir.

Justice Hugo L. Black: That you made?

Mr. Bert Cotton: Yes, sir it is.

Justice Hugo L. Black: Is that the only object that you raised?

Mr. Bert Cotton: So far as the --

Justice Hugo L. Black: So far as the state (Inaudible) of Florida was -- is this applicability was confirmed and that somebody is constitutionally or the contract law.

Assuming it applied -- assuming that Florida law could go in, where did you raise the question that the Florida statute which was not as the Florida judge, Judge (Inaudible) held it to be applicable?

Mr. Bert Cotton: Your Honor, I submit that that would have been raised --

Justice Hugo L. Black: I'm talking about (Inaudible) where was it raised?

Mr. Bert Cotton: I say within the framework of this answer, of this very answer which alleges that it was a contract made in Illinois.

Justice Hugo L. Black: That's right, it says there.

Mr. Bert Cotton: In which event, I was -- I would judge that – the balance would be a question of law as to whether or not the Florida statute would be held to apply to a contract made in Illinois.

Justice Hugo L. Black: I agree to that insofar as your challenge to applying Florida law is concerned.

Where is your challenge, either there or in your appeal to the Court of Appeals or in your brief in the Court of Appeals argued as a matter of fact that even if Florida could apply, this statute didn't govern?

Mr. Bert Cotton: It was in the brief to the Court of Appeals.

I cannot cite --

Justice Hugo L. Black: Was that the first time you raised it?

Mr. Bert Cotton: No, it was raised below.

Justice Hugo L. Black: Where?

It's not in the record.

I can't find it in the record.

Mr. Bert Cotton: Well, it is not the record and therefore, it would be raised in connection I believe that there was a motion for summary judgment where the entire defense was eliminated from the case the Court holding two fold that the Florida statute applied and that it could constitutionally apply and therefore the defense was not even litigated in the trial.

It was out by the time the trial started.

It's not --

Justice Hugo L. Black: When you -- when you appeal that the Court of Appeals, did you have to assign errors or give notes of the challenges you're making?

Mr. Bert Cotton: The appeal --

Justice Hugo L. Black: Under the rules in the Fifth Circuit, how do you do that?

Mr. Bert Cotton: Your Honor I am unable to answer your question with respect to the rules of the Fifth Circuit.

Justice Hugo L. Black: Okay, did you state when you took the case up what the points were on which you challenged the judgment?

Mr. Bert Cotton: That would -- that was stated in several places.

If Your Honor will give me one moment, I will --

Justice William O. Douglas: On page 7, you -- your motion for new trial -- you -- you apparently don't raise this point?

Justice Hugo L. Black: I asked because it seems to me that the point is being raised that you didn't raise yourself.

Well, I see -- I do not see any place in the record where you raised that point.

You've been asked questions about it here but I do not see where you raised it.

Mr. Bert Cotton: All right, Your Honor, it is raised -

Justice Hugo L. Black: The Court could take it up of its own motion, it may well do so.

Mr. Bert Cotton: Yes, sir.

But I believe it is raised and I believed --

Justice Hugo L. Black: Where?

Mr. Bert Cotton: Well, on page 7 of the transcript.

There is the assertion that the law to be applied in regard to the clause is the substantive law of Illinois and not and the law of the forum.

Justice Hugo L. Black: That I understand, that's raised, undoubtedly that is raised that the law of Illinois -- you raised the question contract should be governed by the law of Illinois because that's the constitutional point that you have.

Mr. Bert Cotton: Well, Your Honor, I don't believe that it is only the constitutional point.

I believe sir that in raising the question that the law of Illinois governs, that necessarily raises the question of whether or not the Florida statute should be construed to apply to it.

Not as matter of constitutional --

Justice Hugo L. Black: Well, have you ever put that anywhere in the record?

Mr. Bert Cotton: Well --

Justice Hugo L. Black: -- (Voice Overlap) include that?

Mr. Bert Cotton: It is certainly in the brief to the Court of Appeals.

It is very strongly argued.

As a matter of fact, the Court of Appeals has a section in its opinion in which it discusses whether or not the Florida statute would be held to apply to an Illinois contract.

Justice Felix Frankfurter: You'll be good enough to submit the reach that they submitted to the Court of Appeals --

Mr. Bert Cotton: Sure sir.

Justice Felix Frankfurter: -- and decided what to do with it.

Justice Hugo L. Black: And if you have any other part of the record that show you ever raised this question, if you did raise it in the brief before the brief, will you include that you and your adversary, get it -- can some way to us so I can see where you raised that question?

Mr. Bert Cotton: Certainly, sir.

Now, with respect to the basic question of whether or not the interest of the State of Florida in this contract in relation to the -- its status of an Illinois policy or an Illinois contract was concerned, I would like to call Your Honor's attention to the following.

Aside from the fact that the policy was issued and delivered in Illinois and the full premium paid in Illinois and the insured was at that time a resident of Illinois, we have the following things.

Under Illinois -- under the Illinois Insurance Code, this form of policy must be filed with the Insurance Commissioner, must be approved by the Insurance Commissioner and the issuance of any policy of a different form would be illegal and a violation of Illinois law.

It's fully controlled both as to form and as to rates by the filings to the Illinois Commissioner.

The plaintiff, Mr. Clay was a resident of Illinois.

Therefore, this was not a matter of this company choosing issue policy in Illinois.

It had no choice but to issue this policy because that's what the law of Illinois required.

The premiums attached in Illinois.

The honorary premium reserves, this being the policy issued in Illinois are governed by the law of Illinois.

Loss reserves are subject to control, subject to review by the Illinois Commissioner.

At the time the policy was issued, Mrs. Clay owned the residence which is named as the residence of the assured.

They are attached to the policy of fine arts writer which covers six paintings.

The writer says that these paintings are covered for the full amount of insurance in that place and for only 10% elsewhere.

Not one single act occurred after the assured move from Illinois to Florida.

No endorsements, no premiums, no contact whatever, nothing.

We tried to the interest of Florida and we find that all we have is that after the policy attached and if I might to address for a minute say, “Mr. Reese said that they moved shortly after the policy was taken out, and it was probably two or three months.”

Well, the case can't be controlled by whether three months or two years.

It was sometime during the policy term that they moved.

At the time of this loss, they had some -- they had property in Florida.

They also had property elsewhere.

This is all movable property.

These are all personal property.

As Mr. Justice Stewart asked yesterday about the bank that this covers worldwide, it covers worldwide on property that had no situs just as in the Delta & Pine case this Court pointed out that what was insured there had no situs.

It would cover all of them.

Now, with respect to Delta & Pine and its application to this case, there were more reasons in Delta & Pine for giving Mississippi the right to have its statute reach out to a contract made in Tennessee than there are in this case.

In Delta & Pine, the insured was a resident cooperate -- was a cooperation of the State of Mississippi at the time that the policy was issued.

It happened to have its principal place of business in Tennessee and that's where it happened to get the policy, but the policy or bond covered employees in Memphis and employees in five named cities in Mississippi at the time it was issued.

The fact that the treasurer who was in the home office in Memphis then moved when the company moved its main office to a state of incorporation back to state of incorporation was held by this Court to be insufficient.

So, we have a policy issued to a resident corporation of Mississippi covering property or covering people or activities in Mississippi at the time of issuance and nevertheless, as the Court held that the contacts of Mississippi were inadequate.

Now, we contrast that with the policy and the principles which underlie the Watson Case.

In the Watson Case, where you have as this Court pointed out an interstate business, a business that goes all over the country, it's only home permanence (Inaudible) consequently when the Gillet Company was negotiated -- or when the Gillet Company procured its policy with the employers' liability in Massachusetts or Illinois whichever State is the one that was the site of the contact, there came into being a contract which at that very moment was of interest to the State of Louisiana because Tony was sent into Louisiana and people in Louisiana might be injured.

And the State of Louisiana had a very manifest interest in the protection of its citizens because they might have to travel to Massachusetts to sue the Gillet Company if they were injured.

This Court observed that the statute was a part of an overall and comprehensive insurance law that it made it very clear dealing with an evil and it was seeking to overcome the evil.

We tried to the statute involved in this case.

It's been one of the sections of the Statute of Limitation since 1913, unchanged since 1913.

In the Insurance Commissioner's -- before the Insurance Commissioner's compilation of the laws of Florida affecting insurance, a booklet which includes all of the insurance code and many other laws affecting insurance, you do not find this section.

The manner of the strong public policy is to some extent negated by the fact that pursuant to a Florida Statute which authorizes the Insurance Commissioner to issue pamphlets and booklets and to distribute them to the public and to the governor and the members of the cabinet and authorizes there being in question and to form for the education of agents for the justice and what have you, there appears under the Fire and Allied Alliance which is the kind of policy we're talking about here a question, “What is the limit of time for the bringing of suit on a policy?”

Answer - 12 months from the occurrence of the loss.

Now, we are criticized by counsel for the petitioner and by the Attorney General for citing a -- a publication issued by the Insurance Commissioner saying that doesn't make the law and Insurance Commissioner that doesn't make the policy.

We do not claim that this shows what the law of Florida is.

We claim only that if they were a strong public policy in the State of Florida against one year suit clauses, then most certainly, the man charged with the administration of the Insurance Law of Florida certainly would be the one to know about it and to state it in an educational pamphlet on which Florida adjustor was supposed to be governed and to learn their trade.

Chief Justice Earl Warren: Do they have all the statutes of limitations in that book that affect -- that could affect insurance?

Mr. Bert Cotton: In this booklet --

Chief Justice Earl Warren: Yes.

Mr. Bert Cotton: -- issued by the commissioner?

Not the limitations, but they do have these things which do indicate that it was drawn in reference to the Florida insurance laws.

Florida has a value policy law which of course is different from the provisions of the New York Standard Fire Policy which has been adopted by Florida.

There's a special reference in the value policy law.

Florida has another statute to similar import that you must collect insurance for the amount on which you pay the premium, that's mentioned.

Chief Justice Earl Warren: That's insurance law and nothing else?

Mr. Bert Cotton: Yes, sir.

Yes, sir.

Chief Justice Earl Warren: But these other ones are general statutes which could affect the insurance or any other kind of contract I think?

Mr. Bert Cotton: The statute is very general and --

Chief Justice Earl Warren: All right and what I wanted to ask was, does that booklet that the Insurance Commissioner puts out include all of the general statutes of limitations that could under any conceivable situation applied to insurance or does he purport put in there only those limitations that are directed at the insurance?

Mr. Bert Cotton: Your Honor, I don't believe that I can reliably answer that because --

Chief Justice Earl Warren: No, it's all right.

I thought -- I thought you might know.

I just – it doesn't make the difference.

Mr. Bert Cotton: Well, I want to say that the pamphlet covers many things, disability insurance and life insurance and we did not study it for that purpose so I cannot answer this question.

Now, the question of whether or not the one year suit clause has been evil, whether or not it is something which creates a problem on which the State should have or can have and in this case we say Florida did not have any positive opposing policy.

The New York Standard of Fire Insurance Policy since the first addition back in 1883 has always contained the one year suit clause.

The latest version of it which is the 1943 Standard Policy contains the -- in substance the same clause requiring the suit be brought within one year from the inception of the loss, incidentally a harsher provision than this one because this one says one year from discovery.

I mean, that's the delay and discovery that is not something that prejudice will be assured.

The New York Standard Policy is adopted in 42 states and in the District of Columbia -- I'm sorry, 46 states and the District of Columbia, as is, without a change.

In 42 states -- I'm stating it wrong, 46 states but in 42 plus the District of Columbia, there was no change as to the one year suit clause.

In four of the States, they've adopted longer limitation, 15 months in California, two years in two of the other States.

It's been recognized in the opinions of courts and recognized by Insurance Commissioners that the longer the time to sue, the longer the necessity for maintaining reserves and they snowball because of the number of losses reported only a fraction of thereafter pursued for any one of the number of reasons.

If -- Kentucky has a 15-year statute of limitations on contract.

Kentucky happens to be a State by the Court which held that its statute -- its invalidating statute does not apply to contracts made elsewhere.

But, if you have reserves piled up one on top of another, year after year, you reach a point where your reserves make the company insolvent as far as its balance is concerned and the only remedy for maintaining a solvent position would be the increase of premiums.

And so, there is an overall public interest in seeing to it that there is some reasonable limit on the duration of time for which a reserve has to be maintained.

And so, for that reason, we find that 42 states plus the District of Columbia have accepted the one year limit as a proper and reasonable limit.

Justice Felix Frankfurter: May I ask you this question, Mr. Cotton?

There are two limitations in policies, aren't they?

There is limitation on -- limitation I am using the word loosely and not on the statute on the limitation then which one, the requirement is to give notice within definite period.

Mr. Bert Cotton: That's true.

Justice Felix Frankfurter: And the other is the state statute of limitation or -- or -- one requirement -- limitation of time for giving notice of the injury or loss.

Two, the requirement of the limitation of time within which suit must be brought.

Mr. Bert Cotton: That's true, sir.

Justice Felix Frankfurter: Now, does this -- are both relevant -- are both considerations relevant to or do they clear part in either the fixation of the premiums or the requirement of the reserves or do they fulfill -- are they directed to different functions?

Mr. Bert Cotton: They are --

Justice Felix Frankfurter: I can see the notice of the -- of the injury -- of an injury or loss that you may witness, but it may not get stale et cetera, et cetera.

Now, are those what -- what is the bearing of those two considerations?

What are the -- what is the bearing of those two considerations on what might be called and I am about to use the word “legitimate interest” as against trapping the unwary by having short -- short notices?

Mr. Bert Cotton: They are related in many respects although in certain respects, they perform different functions.

They are related in this sense that immediate notice to enable prompt investigation before the facts get stale and witnesses are unavailable or witnesses die is tied-in with the requirement that the suit be brought on time because of same considerations applied in the suit clause.

I would assume that with respect to the limitation on the time to sue, that limitation controls the time when you can slide off your reserves whereas the notice controls the time when you start -- when you put the reserve on them in the first place so that they move in opposite directions so to speak to that extent, but the opinions that have spelt the same kind of problem.

Justice Felix Frankfurter: Does the fixing of the scale of premiums (Inaudible)?

Mr. Bert Cotton: Well, the premiums are in an overall -- on an overall basis affected by the length of time on which -- for which you have to maintain your reserves.

If your reserves pile up, your premiums have to go up in order for you to be solvent.

So they -- they are affected and it is for that reason that you maintain that the one year limitation is not a trap for the unwary.

As a matter of fact, I should like to point out this.

The one year limitation is easily waived.

The courts have found all the time, if there is any conduct on the part of the insured which misleads the insured so that it doesn't bring suit in time the floor – it is waved.

If there is any impossibility which prevents the insured from bringing the suit in time, the insured is not thus precluded from his lawsuit.

This is not a trap.

This is not anything but an attempt in line with what I submit has been the generally policy of the Boards to not to expand the time when matters remain open and undisposed of, but to contract that period to the extent possible.

Justice John M. Harlan: Can I ask you a question?

Mr. Bert Cotton: Yes, Sir.

Justice John M. Harlan: Was any suggestion made by either of you and either of the two courts below that party should be readmitted to the state courts to get a ruling on the question of state law?

Mr. Bert Cotton: No, Your Honor no -- no suggestion was made by either side.

Justice Hugo L. Black: Now, you were stating about the number of States that have laws -- I didn't quite understand.

You say how many have -- how many States have law and that do not have laws that provide that state statute of limitation shall not be shortened by the company's contract?

Mr. Bert Cotton: We --

Justice Hugo L. Black: I thought you stated it, maybe the other --

Mr. Bert Cotton: Well, we have the analysis sir to this extent.

In the appendix to our brief, we have dealt with the Statutory Fire Policy because that is the policy which has nationwide acceptance, nationwide contacts so that we can make a survey desk with the Standard Fire Policy.

Out of the 46 States plus the District of Columbia which have adopted the New York Standard Policy either by statute or by insurance -- the Insurance Commissioner, 42 have adopted it without any statutory change.

Certain of them have special provision for increased time.

We have not attempted to catalogue those States which have provisions of general nature invalidating these when you're --

Justice Hugo L. Black: These are fire -- these are fire policies.

Mr. Bert Cotton: These are fire policies sir which have the --

Justice Hugo L. Black: When you look it up, I had an idea that frankly all of the States bar contract to the clauses and held in act that might try to short the state statute of limitations.

Am I wrong in that?

Maybe I am I --

Mr. Bert Cotton: Well, Sir, I -- I would not --

Justice Hugo L. Black: Did you look it up by the --

Mr. Bert Cotton: No, no, not with respect to just really policies.

As a matter of fact, Florida has in its own insurance code, a shortening of the -- of their own statute of limitations on disability.

Justice Hugo L. Black: But that's not attached --

Mr. Bert Cotton: By statute, Sir in the insurance code.

Justice Felix Frankfurter: Do you mean that they've got a shortest statute limitation for disability than the fire lawsuit?

Mr. Bert Cotton: Yes, sir.

Chief Justice Earl Warren: Mr. Cotton, in stating the facts, you -- you rarely stressed I thought the fact that the property was in Illinois at the time that the contract was made.

I was going to ask you this.

In a worldwide policy of this -- of this kind, does it make any difference to the company whether the property is in Illinois or in the neighboring state or at some distance?

Mr. Bert Cotton: In this policy, although it is worldwide and would cover loss no matter where it occurs, there is a requirement on the face of the policy that the insured state what portion of its property is in the place of principle residence which is the address stated in the policy.

The premiums -- and this is not on the record, Your Honor as I am --

Chief Justice Earl Warren: Yes.

Mr. Bert Cotton: -- stating this without identifying the record, the premiums are determined by rating bureaus dependent on the particular risks in the State where the policy is issued.

This, despite the fact that if a man moves from the place of issuance to another resident -- in another State, the company has no way of doing anything about it.

Chief Justice Earl Warren: Right, but they would write -- they would write the insurance policy of this kind if the property had been in the State other than Illinois at the time.

Mr. Bert Cotton: But if the insured are resident of Illinois and --

Chief Justice Earl Warren: (Voice overlap) --

Mr. Bert Cotton: -- yes.

Thank you.

Chief Justice Earl Warren: Thank you, Mr. Cotton.

Justice Tom C. Clark: They -- they moved property under Illinois' authority?

Mr. Bert Cotton: They moved some of the property.

The record shows that at the time of the loss, they had property in somewhere other than Florida than so where that they had property other than in Florida at the time.

Justice Tom C. Clark: Oh -- it (Inaudible) the suit is in the Florida (Inaudible)?

Mr. Bert Cotton: Yes, sir, personal property.

Justice Tom C. Clark: And then, what (Inaudible)?

Mr. Bert Cotton: No, sir they were not.

Justice Tom C. Clark: They didn't have the right to say?

Mr. Bert Cotton: They didn't have to do anything and in the brief of the Attorney General, it is stated that the company knew that they had moved.

I think the statement reads too much into a very brief bit of testimony.

The -- there was a general agent in Chicago to whom this policy had been issued to Mr. Clay while he was a resident of Chicago.

This general agent carried all of Mr. Clay's insurance and various claims and it had nothing to do with his company.

The question is, “Did you get in touch with Bartholomew after -- after you moved to Florida?”

The answer is yes, but we don't know when.

That may have been after the loss occurred.

This may have been in connection with the policies of some other company have nothing to do with this defendant.

That's all there is all the requirements that the company be notified.

Justice Tom C. Clark: (Inaudible)

Mr. Bert Cotton: I don't believe so, unless it has to do with the notification of loss after the loss occurred.

I think the only sentence with respect to anything other than notification of loss is the one question, “Did you get in touch with them after you moved to Florida?”

The answer is yes.

Chief Justice Earl Warren: Thank you, Mr. Cotton.

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Blackburn v. Alabama - Oral Argument

Wed, 28 Nov 2012 22:53:12 +0000

Case:

Blackburn v. Alabama

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426_19570502-argument

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426_19570502-argument

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