Cases by Issue - Employability of Aliens

Bernal v. Fainter - Oral Argument

Thu, 30 Aug 2012 22:15:40 +0000

Case:

Bernal v. Fainter

Media File:

83-630_19840328-argument

Related Transcript:

83-630_19840328-argument

Transcript:

ORAL ARGUMENT OF CORNISH F. HITCHCOCK, ESQ., ON BEHALF OF PETITIONER

Chief Justice Warren E. Burger: We will hear arguments next in Bernal against Fainter et al.--

We'll wait until the noise is dispensed with.

Mr. Hitchcock, I think you may proceed whenever you're ready.

Cornish F. Hitchcock: Thank you, Mr. Chief Justice, and may it please the Court:

Eleven years ago in the case of In Re Griffiths, this Court held that it was a violation of the equal protection clause for a state to require United States citizenship as a condition for being admitted to a state bar.

The question before the Court today is whether, in light of the Griffiths decision, a state may constitutionally require citizenship as a condition for being licensed as a notary public.

The Petitioner in this case is a lawful resident alien who in 1978 applied to the Texas state authorities for a license as a notary public, and he desired to use license in connection with his job as a paralegal with a legal aid organization in Texas.

The state authorities denied his application solely on the basis that he was not a United States citizen and therefore ineligible under the statute at issue before you.

This Court has indicated that in assessing state classifications and restrictions involving aliens, the general standard of review is strict scrutiny, although there are exceptions in some areas.

For example, the Court has held that states are able to deny aliens certain rights, such as voting or running for elective office.

And especially pertinent for today's case is the Court's holdings that citizenship may be a relevant factor if the state imposes the restriction in connection with certain appointive positions where the individual is exercising powers of the state that go to the heart of representative self-government.

Our position is that the statute in this case is to be judged under the strict scrutiny standard of Griffiths, but even under the more deferential standard applied for certain of these appointive positions we are still entitled to prevail.

Let me focus for a minute, if I may, on the qualifications it takes to become a notary public in Texas and also on the nature of the function.

In order to become a notary public in the State of Texas, one must fill out a one-page application... and Mr. Bernal's application is part of the record... that gives one's name, address, and requires the answers to four questions: Are you 18 years of age; are you a citizen of the United States of America and Texas; are you a resident of the county for which you are applying; have you ever been convicted of a crime involving moral turpitude?

There's a requirement of notifying the Secretary of State and the county clerk of any changes of address.

What's interesting is what is not required.

There is no requirement that one say one is familiar with what a notary does in Texas, nor, interestingly enough, is there a requirement that the application be notarized.

The functions of a notary are relatively straightforward.

A notary in Texas is allowed to witness signatures on documents, to administer oaths, take depositions, and authenticate documents.

And the nature of the functions of this office are important because the Court has discussed these in a number of situations when the lesser standard of review has been applied.

Unidentified Justice: Do those functions differ much from the functions of notaries public generally?

Cornish F. Hitchcock: No, they are rather similar to the functions of notary publics.

They are similar to the functions that Mr. Bernal performed when he was a notary public in Indiana four years, and they're also identical to the functions that are performed by commissioners of the superior court, an office to which lawyers are appointed in Connecticut, which was in the Griffiths case.

Unidentified Justice: Mr. Hitchcock, what difference does it make that the notaries public in Texas are constitutional officers--

Cornish F. Hitchcock: In our view--

Unidentified Justice: --as opposed to statutory authorization, such as in Griffiths?

Cornish F. Hitchcock: --In our view, Justice O'Connor, there is no difference between the fact that an office is created in the constitution and the fact that the office, such as commissioner of the superior court, is created by statute.

Unidentified Justice: Well, does it indicate that the state considers the office more important?

Cornish F. Hitchcock: I would say it indicates that the state does consider the office slightly more important.

But I think it's important to focus on the nature of what the statute and the constitutional provision are involved here.

In the first place, the Texas constitution merely states that the office is created, and there is discretion that is left to the legislature to decide the qualifications, the standards, what regulation should be imposed.

Interestingly enough for this case, the state's argument that this is an important position because it is in the state constitution really cuts both ways.

It took a century before, until 1945 at least, that a residency requirement was imposed by the Texas legislature, that one be a citizen of the state, an ambiguous phrase at the time.

Citizenship of the United States was not required until 1965.

So in that sense the argument does cut both ways.

One final point, if I may.

The state's argument that this is an important post because it's in the constitution has the problem with it that what the state is saying in effect is that, we have greater discretion to discriminate provided we name the post in our state constitution.

And we're not aware of any authority that gives the state that leeway, and there would be the potential hazard that states would seek to get more deferential review by simply naming posts in their constitution.

With respect to the Griffiths case, the office of commissioner of the superior court was a public office, it was created by the statute.

Now, the restriction in Griffiths on being admitted to the state bar carried with it the restriction on being a commissioner of the superior court, and let me focus specifically on what a commissioner of the superior court does.

Despite the very grandiose name, the commissioner of the superior court is essentially a notary public, and lawyers sign documents, notarize documents in Connecticut as commissioners of the superior court with their own signature.

They don't need a seal.

When one is admitted to the Connecticut bar as an attorney, one takes a second oath immediately after that attorney oath as a commissioner of the superior court, and that is the nature of the office.

What's important about Griffiths and important about the restriction with respect to commissioners of the superior court is that the State of Connecticut in Griffiths raised precisely the same arguments that are being advanced here, that lawyers as commissioners of the superior court are being entrusted with the actual performance of government power and that the state has given meaning to the phrase that they are officers of the court.

And this Court answered the question in language which we think is highly pertinent here, where the Court said that giving a lawyer the authority to issue writs and subpoenas or to witness signatures or to administer oaths is not a matter of state policy or a matter of such unique responsibility that only citizens can be entrusted with that responsibility.

In light of the similarities between what Texas notaries public do and Connecticut commissioners of the superior court do, we submit that Griffiths is controlling and that the statute should be judged on constitutional... under strict scrutiny.

The state here has presented no evidence that aliens as a class are so untrustworthy, disloyal to the United States, or incompetent that they must all be excluded from performing this role, from administering oaths, from witnessing signatures, and so forth.

The Secretary of the State has the power to issue qualifications.

There's a bonding requirement, a recordkeeping requirement, civil liability for negligence or for intentional wrongdoing, and criminal liability.

These are the sorts of regulations that should assure proper performance regardless of citizenship.

If the state's argument is accepted in this case, what will happen is a very curious anomaly.

Under the state's argument, an alien in the State of Texas can go to law school, can be admitted to the Texas bar, can practice law, and can draft a whole host of legal documents that have a significant impact on the public.

But that alien, that lawyer, will not be able to notarize the documents that he or she has drafted.

We believe that this anomaly is inconsistent with the equal protection standards of this Court and that it should be struck down under the strict scrutiny test.

Let me turn now, if I may, to the state's argument that a more deferential standard of review is appropriate here because we're dealing with an office involving execution or formulation of policy factors that go to the heart of representative self-government.

This Court indicated in Sugarman against Dougall and most recently in Cabell versus Chavez-Salido that there are two standards that must be met.

First, in order to take advantage of this more deferential standard, the state must show that the restriction is sufficiently tailored to meet its ends, that it's not over-inclusive or under-inclusive; and secondly, that we really are dealing with one of these significant sovereign functions of the government.

The restriction in this case fails on both counts.

The restriction is over-inclusive because it denies qualified resident aliens such as Mr. Bernal, who performed the functions of a notary for four years in Indiana, the opportunity to get a commission.

And it's also under-inclusive because there's another state office which performs similar functions, the office of court reporter.

Court reporters are officers of the state.

They are licensed by the state.

There, I believe, is a committee to deal with unauthorized practice of court reporting.

And they certainly perform functions that we find it hard to believe are less important than those that are performed by notaries public.

But however, these court reporters are not required to be citizens.

Finally, there is another anomaly here, that the Secretary of the State of Texas, who actually is responsible for licensing notaries, is not required to be a citizen.

What the Texas statutory scheme has done is what was aptly described in Cabell: The state has indiscriminately swept in a variety of menial occupations, while leaving out some of the state's most important political functions.

Turning now to the second part of the standard, the application of the Sugarman exception for sovereign functions of government.

There are several common themes that run through the Court's cases in which this restriction, in which this lower standard, more deferential standard, has been applied.

In the first case, the cases where the standard has been applied involving policemen, school teachers, deputy probation officers, all involved public employees, state municipal employees, who were on a public payroll.

Unidentified Justice: Do you think all those cases are consistent?

Cornish F. Hitchcock: Well, I think that if some of the cases had come out differently we would have an easier time in this case, Justice Blackmun.

But your question leads me to the other common threads here.

What the Court has done is identified several important functions, two important functions, law enforcement and education, and has allowed there to be restrictions in deference because of the importance of law enforcement and education to the exercise of the state's functions.

Unidentified Justice: I suppose it's fair to say the Court's been cutting back from what, a more extreme position taken in Griffiths?

Cornish F. Hitchcock: Well, the restrictions have... the last three cases have applied a more deferential standard and have upheld the restrictions.

Our position again is that this case is governed by strict scrutiny and this discussion of the more deferential standard comes in only if the Court says that strict scrutiny is not applicable in this situation.

Unidentified Justice: Do you think this case can stand without Griffiths in effect being overruled?

Cornish F. Hitchcock: No, Griffiths would have to be overruled in order for the state to prevail in this particular action.

The other thread that I was referring to is that we are dealing with functions that go to the sovereign functions of government, the exercise by the state entrusting individuals with the performance of state functions.

It's one thing to give individuals the power to build bridges, such as civil engineers do in Flores de Otero, but when engineers build bridges they're not exercising the sovereign function of the state even though they're licensed by the state.

When lawyers draft contracts, they may be licensed to do that, but they're not exercising sovereign power.

Unidentified Justice: Well, how about roads?

I thought roads and bridges were a sovereign function now in this country.

Cornish F. Hitchcock: Well, they've always been performed... they are public works, but it's not exercising the sovereign function of the government that goes to--

Unidentified Justice: You mean the building of a road is not exercising a sovereign power?

Cornish F. Hitchcock: --Not in the sense that it has been used in the descriptions, in the standards set forth in the decisions of the Court.

Conceivably, if building a road is regarded as a sovereign function, the people who are building the road might be regarded as sort of employees.

Unidentified Justice: Governments always have to hire people to do their work.

They even hire... the governor of a state is hired by the people, but that doesn't make him any less sovereign, does it?

Cornish F. Hitchcock: Chief Justice Burger, the difference tends to be, as the Court recognized in Sugarman, that there are differences between the functions that are performed by different state employees.

The point that I am making is that there is a world of difference between the situation in which policemen are authorized to make arrests and deprive people of their liberty in the name of the state and the situation in which a notary public is authorized to tell someone to raise their right hand and take an oath or to witness a signature on a document.

That is the distinction which is important, which separates this case from the cases where the more deferential standard has been applied.

Finally, even if the Court should apply the more deferential standard of review to this restriction involving aliens, we submit that we are still entitled to prevail because there is no rational basis for this particular blanket exclusion.

The state has presented no evidence that excluding all aliens, discriminating against all aliens, rationally advances the legitimate state interest with respect to having documents properly processed or the other interests that have been identified in this case.

If the Court has no further questions at this point, we would respectfully like to reserve the remainder of the time for rebuttal.

Chief Justice Warren E. Burger: Ms. Keller.

ORAL ARGUMENT OF MARY F. KELLER, ESQ. ON BEHALF OF RESPONDENTS

Mary F. Keller: Mr. Chief Justice and may it please the Court:

To resolve this case, there are basically two inquiries that need to be made.

The first inquiry is, does the Texas office of notary public come within the governmental function principle recognized in Sugarman and refined in Cabell?

And if it does, the second inquiry is, does the requirement of citizenship bear a rational relationship to legitimate state interests?

It is certain that Texas recognizes the office of notary public as performing a governmental function.

The State of Texas is one of six states to provide for the office of notary public in its constitution, beginning with the constitution of 1845.

Unidentified Justice: Of what significance is that?

Mary F. Keller: Your Honor, the significance is that historically Texas has considered the office of notary public to be a public office, one that the state gives high regard to.

There would be only six per county.

The constitution does not name very many public officers in its constitution and this happens to be one of them.

It is only one of many factors which lend credence to the statement--

Unidentified Justice: Does the holder get a special title, so that you call him Mr. Notary Public> ["] instead of Mr. Jones> ["]?

Mary F. Keller: --I'm certain that a notary could insist on it.

It does not appear in any cases that I have read.

Unidentified Justice: And yet, in your state most lawyers are called "Judge", aren't they?

[Laughter]

Mary F. Keller: That is true, Your Honor.

The interpretive commentary to the Texas--

Unidentified Justice: There are quite a few more notaries today than six per county, I take it?

The role has changed somewhat over the years in Texas.

Mary F. Keller: --Yes, Your Honor, there are quite a few more notaries.

It's not that the role--

Unidentified Justice: For instance, how many today in the State of Texas?

Mary F. Keller: --I believe, reading Petitioner's brief, that there are in excess of 100,000.

Maybe there are 300,000 notaries.

And it's not so much that the role has changed, Your Honor; it's that Texas is becoming--

Unidentified Justice: Well, let's say the significance of the office has been diluted somewhat.

Mary F. Keller: --There are many more--

[Laughter]

Yes, Your Honor, there are many more significant officeholders now in Texas, and it reflects to a large extent the industrialization of Texas and the need for many more public officeholders to do the functions that the State of Texas has authorized the notary to do.

Unidentified Justice: May I go back to the 1845 constitution for a minute.

Are we to believe that that provision really was enforced, that the notary was appointed by and with the consent of the senate on a two-thirds vote?

Mary F. Keller: Yes, Your Honor, until 1940.

Unidentified Justice: Until 1940.

Mary F. Keller: Yes.

Unidentified Justice: That must have been a busy legislature.

Mary F. Keller: Very busy legislature.

[Laughter]

But it shows... I think what all this shows is that there is no set job of notary public across the country; that in fact Texas has a special place for its notary publics, notaries public; that it gives them a great deal of authority; that it puts it in its constitution; that it gives them a commission of the state, a commission that requires that they are acting by the authority of the State of Texas, with the seal of the State of Texas.

Unidentified Justice: In what ways do the actual functions and authority of notaries in Texas differ from those in Connecticut?

Specifically hew would their functions and authority differ?

Mary F. Keller: Your Honor, I am not completely familiar with the functions of notaries in other states.

I would say--

Unidentified Justice: Well, I picked in Connecticut because of course that is where Griffiths was decided.

Mary F. Keller: --Right.

Unidentified Justice: And it might be closely reviewed.

Mary F. Keller: Yes.

In Texas there are only three offices which can take acknowledgment of written instruments for the purpose of recording.

They are the district clerk, the judge or the county clerk... the county judge or county clerk, or the notary.

So to get a written instrument recorded in Texas, there are only three officeholders that you can go to.

As part of taking--

Unidentified Justice: Is that special to Texas?

Mary F. Keller: --Your Honor, I found it to be very unusual, because, as we all know, there are deeds and mortgages that need to be recorded every day, and to limit it to three officeholders seemed unusual to me.

Unidentified Justice: And that isn't true in most states in your view?

Mary F. Keller: As far as I know not, Your Honor.

In looking at the Connecticut statutory scheme, it did not appear to be the case there.

Unidentified Justice: And who else was authorized in Connecticut that you found in your review?

Mary F. Keller: I'm don't know, Your Honor.

As part of the process of--

Unidentified Justice: Well, I would suspect that everybody on this bench has been a notary public at one time or another, and I would suspect that their certificates read something like this: That I, so and so, governor of the state of, imposing special trust and confidence in, do hereby appoint you a notary public.

Do you think this is less serious than they take it in Texas?

Mary F. Keller: --The only response I can make to that, Your Honor, is that Texas takes it seriously.

I don't know that other states take it less seriously, but Texas takes its notaries public very seriously.

I think part of it is it is a border state.

It has a great deal of influence coming from Mexico, where the office of notario publico is a very important office, much more analogous to attorney.

Prior to the Texas constitution of 1845, when it was a Republic, it made a special statutory designation of notaries in 1837.

Unidentified Justice: I don't recall from the record here.

Must the notary in Texas put up a bond?

Mary F. Keller: Yes, Your Honor.

Unidentified Justice: That's true in most of the states, is it?

Mary F. Keller: I believe it is true in most states.

Not only must the notary put up a bond, but Texas statute requires... or allows a party to sue a notary for liability in the event that the notary does not perform his or her function properly.

So there is a great incentive on the part of the notary to be well versed in Texas law prior to taking on the commission of the office of notary public.

Unidentified Justice: Well, I suppose a lawyer can be sued for malpractice, too.

I just wonder, are you really asking us to overrule Griffiths?

Mary F. Keller: No, Your Honor, absolutely not.

I don't think Griffiths is controlling in any way in this case.

Unidentified Justice: Do you think that the notary has a more significant function to play in Texas than a lawyer does?

Mary F. Keller: It's not a question of significance of the function.

The notary is clearly a public agent.

An attorney is just as clearly a private occupation.

It has traditionally been a private occupation.

The lawyer comes to the state to provide a forum, but he or she is an advocate, an adversary.

The lawyer charges whatever fee the lawyer thinks he or she can get.

The lawyers records are not public records.

In Texas the notary's records are public.

In Texas the notary can only charge an authorized fee.

Unidentified Justice: What is that fee, incidentally?

Mary F. Keller: 50 cents per notarial act.

Unidentified Justice: 50 cents?

Mary F. Keller: That's right, Your Honor.

It would be very difficult to make a living as a notary in Texas.

Unidentified Justice: Well, other states are less than that and some are higher.

Mary F. Keller: Pardon me, Your Honor?

Unidentified Justice: I say other states are less than that and some are higher, so that Texas isn't very special in that regard.

Mary F. Keller: It's not special, but the point is I think that the fee reflects the Texas perception that it be basically a function that a private individual performs on the behest of the state, but it is not an occupation.

It was not intended to be an occupation.

Unidentified Justice: Do judges have to be citizens in Texas?

Mary F. Keller: The judges in Texas are elected, Your Honor, and as part of the election--

Unidentified Justice: Well, the question was--

Mary F. Keller: --Yes, Your Honor, yes.

Unidentified Justice: --The statute says they have to be citizens?

Mary F. Keller: Yes, Your Honor.

Unidentified Justice: Do the lawyers?

Do you think federal judges in Texas have to be citizens?

Mary F. Keller: I don't know that, Your Honor.

All the state judges do.

Unidentified Justice: Lawyers don't have to?

Mary F. Keller: Lawyers do not have to be, Your Honor, absolutely.

Unidentified Justice: Do you consider your profession below a notary's?

[Laughter]

Mary F. Keller: As I said, Your Honor, it's not a question of what's more important.

It's a question that the function of the notary is a state function, and as such the state has the right to make certain qualifications for what are sovereign functions.

The lawyer is not a state actor, and as a matter of fact specifically this Court in In re Griffiths found that under state law, Connecticut state law, the lawyer was not an officeholder, was not an official of the state.

And that is a distinction with this case, because--

Unidentified Justice: Is the lawyer an officer of the court in Texas?

Mary F. Keller: --I believe that... I don't know that.

I don't know that, Your Honor.

I believe that there... certainly the lawyer is regulated very extensively in Texas, must... there are canons of ethics that require disclosure to the court in certain circumstances.

But the State of Texas does not consider lawyers as officers of the State of Texas.

Unidentified Justice: What about a prosecutor?

Does he have to be a citizen?

Mary F. Keller: Well, to the extent that Ambach makes distinctions between public school teachers and private school teachers, it may be that a state could designate certain attorneys as public officeholders and require that they be citizens.

Unidentified Justice: No, that wasn't my question.

Mary F. Keller: Oh, excuse me.

Unidentified Justice: As a matter of Texas law, must a prosecutor be a citizen?

Mary F. Keller: No, Your Honor.

But the elected prosecutor, the DA, the elected prosecutor would have to be a citizen, because the elected officials in Texas--

Unidentified Justice: But he could hire assistant prosecutors who are not?

Mary F. Keller: --Yes, Your Honor, he could.

I might also add a distinction between Griffiths and this case, and one that the Court was justly concerned with, was that to deprive Griffiths of the right to practice law would be to deprive her of a livelihood.

This is not the case here.

Unidentified Justice: Well, I suppose there would be some jobs in which you would not be eligible for the position if you weren't a notary.

Some law offices like to hire a secretary who's a notary or something like that.

So it does affect job qualification, doesn't it?

Mary F. Keller: Your Honor, hypothetically it might, but the record before this Court includes two plaintiffs, one who became a citizen before we got here and the other who is still before the Court.

The record established in both of those cases that the Petitioners had no impact on their ability to make a livelihood; that they had continuously been hired; that being a notary was not a requirement of their job.

And as a matter of fact, Mr. Bernal testified that the reason he wanted to be a notary is it would be more convenient for him.

Texas considers the notary to be a governmental function, and in the constitution, historically, statutorily, it has consistently treated it that way.

Once the state has defined the office of notary public as one of a governmental function, of course this Court may still inquire as to whether or not citizenship is rationally related to a legitimate state interest.

The inquiry does not... this is the harder part of this case.

And basically, there are three parts in looking at whether or not there is a rational basis here: Does the notary perform functions that are so essential to representative government that it is rational to require the legal bond of citizenship?

That certainly would be one way for the state to establish that there is a rational basis to require citizenship.

In looking at the line of Court cases in this area, that is primarily where the attention has focused: Is there something about the job itself that rationally requires citizenship.

My reading of the cases indicates that the Court would entertain other legitimate interests that might be advanced by the requirement of citizenship.

And finally, the Court has been concerned with whether or not the classification is substantially over or under-inclusive, such that the state's scheme is haphazard in some way.

In Cabell--

Unidentified Justice: I'm sorry, but before you leave the first point about what the rational basis is, tell me again, what is the reason for it?

Why do you want them to be citizens?

Mary F. Keller: --Texas has given great amounts of authority to its notaries.

Unidentified Justice: I thought that's how you got to the rational basis standard.

That's your first threshold.

Mary F. Keller: Well, Your Honor, my first threshold--

Unidentified Justice: Once you get there, why do you have to have citizenship?

Mary F. Keller: --My first threshold is is it a governmental function.

Unidentified Justice: Yes, and if we answer--

Mary F. Keller: And it's a governmental function apart from its duties.

It's a governmental function because Texas has recognized it as a public office.

Unidentified Justice: --Yes, but once we get there we would say, now, having agreed with you on that, we say now we've got to find out what the rational basis is.

Mary F. Keller: Right.

Unidentified Justice: You can't say the rational basis is that it's a governmental function.

Mary F. Keller: The rational basis in Ambach and Cabell was, yes, it's a governmental function; is that function so essential to government that the legal bond of citizenship is required?

That is what the Court determined in Ambach, that's what the Court determined in Cabell, that because of the function of the job, that it was so closely tied to the execution of policy or the formation of policy, that citizenship was rationally required because of the nature of the job.

Unidentified Justice: Well, you're not suggesting notaries form policy, are you?

Mary F. Keller: Notaries do not form policy.

Unidentified Justice: Well now, what is the reason why they have to be citizens?

I still don't follow you.

Mary F. Keller: Texas has given notaries a great deal of authority.

For instance--

Unidentified Justice: That's why it's a governmental function.

Mary F. Keller: --Yes, and I'm going to clarify it right now.

In authorizing notaries to take acknowledgment of written instruments for recording, the State of Texas has provided notaries with the authority to administer oaths, employ and swear interpreters, issue subpoenas, and to punish for contempt if the subpoena is ignored.

Unidentified Justice: And it's so important that it's worth 50 cents.

[Laughter]

Mary F. Keller: Your Honor, I think the notary is very similar, similarly situated to a juror.

Jurors are paid--

Unidentified Justice: Well, even at that, a juror gets more than 50 cents.

[Laughter]

Mary F. Keller: --Well this is just for one little act.

I mean, it may be that in the whole day there would be more to be made.

But jurors are not compensated nearly in relationship to their importance to the governmental function.

Unidentified Justice: They get more than 50 cents.

Mary F. Keller: Well, they get ten dollars a whole day, I think, or something like that.

Unidentified Justice: But they get more than 50 cents.

[Laughter]

Mary F. Keller: Yes, Your Honor, they get more than 50 cents.

But they are basically... it's an honor to be a juror, in the same way that it's an honor to be a notary in Texas.

It is not... notaries and jurors are not in it for the money.

They are requested by the state to perform an important governmental job, and they do so.

They are private citizens for the most part and they do so because it is an honor to do so.

Unidentified Justice: Well, Ms. Keller, if we go along with you to the point that Justice Stevens took you and then said, so why does it have to be, why is citizenship required, in Cabell at that very point the Court inquired whether the position in question involves discretionary decisionmaking or execution of policy.

Now, tell me how a Texas notary performs, is involved in discretionary decisionmaking?

Mary F. Keller: All right, Your Honor.

Unidentified Justice: Because that's part of the argument on the other side, is that this is wholly ministerial.

Mary F. Keller: In Texas, as I was saying, under state law, in performing one of its important functions, which is preparing documents for recordation, the notary has the right to issue subpoenas to witnesses, and if they fail to come or fail to answer properly the notary has the right to punish them for contempt.

The punishment for contempt is a coercive authority of the state.

It is--

Unidentified Justice: And what does that... when does the notary get involved in this function?

Mary F. Keller: --As part of the statutory scheme for authenticating documents to be recorded, there are--

Unidentified Justice: If the notary disbelieves somebody, he can get some witnesses, is that it?

Mary F. Keller: --There are two ways to record instruments.

One is the person signing it comes forward and has it notarized.

Unidentified Justice: Yes.

Mary F. Keller: In the event that it's already been signed and the person is deceased, there is a proof of written instrument.

Unidentified Justice: So he holds... in effect, takes some evidence?

Mary F. Keller: That's right, Your Honor, absolutely.

Unidentified Justice: Holds a... and makes a judgment.

Mary F. Keller: That's right, makes a judgment about whether or not this is the person who signed it, it's an authentic document.

And as part of that authority, the notary has the right to issue a subpoena to recalcitrant witnesses and, if the witnesses fail to cooperate, has the right to hold them in contempt.

Unidentified Justice: Is there anything else about the notary's job that involves some sort of discretionary decisionmaking?

Mary F. Keller: In taking affidavits, the notary is allowed to... is authorized by law to take oaths.

In this case the notary is required to be certain that whatever is being authorized or sworn to, that the person understands, that it is in fact the person.

There is a large... there is nobody that the notary is supervised by.

They are in many counties and there are many of them, and they are basically operating on their own.

Unidentified Justice: Suppose two or three people come into a notary and they present a deed of a conveyance, and one of the persons being requested to sign, perhaps the wife of one of them, exhibits great reluctance.

Does the notary have an obligation in Texas to determine whether that is the free act of the person signing and swearing?

Mary F. Keller: Yes, Your Honor, and that is another area where the notary exercises a great deal of discretion.

Unidentified Justice: In Texas do they, as in some states in the past, are they required to take the oath of a husband and a wife separately, out of the presence of each other, so that they can determine whether the wife is making the husband sign or the husband is making the wife sign against their free will?

Mary F. Keller: Your Honor, that had been in the Texas statutory scheme, but it has been repealed.

It no longer makes that kind of requirement.

Unidentified Justice: But the notary must make a judgment as to whether or not the person is acting of his or her own free will?

Mary F. Keller: That's absolutely correct.

And once the notary notarizes the document, it is conclusive that it is what it said, what it purports to be, unless there is fraud proven in a court of law.

Unidentified Justice: Is that aspect of the notary's duty different, do you suppose, than that of other states, such as Connecticut?

Mary F. Keller: The ability to hold a person in contempt of court is one that I think is unusual and, looking at some of the publications of the American Association of Notaries, it does not appear to me that that is a standard authority given to notaries.

And in my reading of In re Griffiths, which is the only familiarity I have with the notary in Connecticut, it is not designated as one of the authorities that the notaries there have.

Unidentified Justice: Do you cite in your brief any cases in Texas in which a notary has held anybody in contempt of court?

Mary F. Keller: We do not, Your Honor.

The most recent case on this is Harbison versus McMurray, 163 Southwest Second 680.

It was decided in 1942 on a writ of habeas corpus to release somebody from a commitment by a notary.

And the court in that case found that it was a verbal order and therefore was not an effective commitment, but in so doing recognized the notary's authority to hold somebody in contempt of court.

Unidentified Justice: And there has been no case in the last 40 years on it?

Mary F. Keller: There have been no reported cases in the last 40 years that I have been able to find on this issue.

Unidentified Justice: What does a notary do when he commits, when he finds somebody in contempt?

Does he call the sheriff to take him to the jail, is that it?

Mary F. Keller: That's right.

That's right.

Unidentified Justice: And what is it?

It isn't criminal contempt, is it?

It's civil, or what?

Mary F. Keller: Well, I suppose it depends on... it's a civil contempt until they're purged.

It would not be a criminal contempt.

Unidentified Justice: May I ask, just to refresh my recollection, what are the qualifications to be a notary in Texas, beside being a citizen?

Mary F. Keller: You must be over the age of 18.

Unidentified Justice: Yes.

Mary F. Keller: A resident of the State of Texas.

Unidentified Justice: Yes.

Mary F. Keller: The Secretary of State, in making appointments, has to be convinced that there is no good cause... that there is good cause to appoint you.

Unidentified Justice: What does that consist of?

Mary F. Keller: Basically, you cannot be appointed if you have committed a crime of moral turpitude?

Unidentified Justice: Ma'am?

Mary F. Keller: You cannot be appointed if you have committed a crime of moral turpitude.

Unidentified Justice: Do you have to present a court record or affidavit?

How do you show you haven't committed?

Mary F. Keller: You certify on your application that there is no reason under law that you would be excluded.

Unidentified Justice: Do you have to have any documentation from other people or is your certification accepted?

Mary F. Keller: I believe the certification is accepted, Your Honor.

Unidentified Justice: Who appoints you?

Mary F. Keller: You're appointed by... now, since 1940, you're appointed by the Secretary of State.

Unidentified Justice: And the Secretary of State need not be a citizen, as I understand it?

Mary F. Keller: The Secretary of State need not be a citizen.

But Your Honor, the Secretary--

Unidentified Justice: And the notary need not know how to read or write.

[Laughter]

Mary F. Keller: --The notary... the requirement to be a notary does not include that.

However, Your Honor, it is a bonded position, and by statute the notary is liable for any harm done as a result of a mistake that he or she makes.

So to the extent that there is incentive to be able to read and write and do your job correctly, there certainly is a financial incentive.

Unidentified Justice: I don't see any requirement that somebody be able to read and write in connection with an awful lot of official positions.

Mary F. Keller: That's probably... that is certainly true.

All the elected... all the elected positions in Texas, of course, that clearly is not required.

Unidentified Justice: Or maybe for the Senators and Congressman of the United States.

[Laughter]

Mary F. Keller: To the extent the Secretary of State is not required to be a citizen, I'd like to respond briefly to that.

The Secretary of State is appointed by the Governor with the advice and consent of the Senate, the same way the notary was previously appointed, previous to 1940.

To the extent that what the State of Texas is interested in is commitment to the state, accountability, loyalty, availability should a question about a notarial act arise, it is the legislature's determination that there is sufficient reason to believe that a person of that character will be appointed by the Governor with the advice and consent of the Senate.

It's a substitute mechanism for guaranteeing the qualities that Texas wants in its notaries or in its Secretary of State.

Unidentified Justice: And the only evidence of character is the filling out of a form by the applicant himself or herself?

Mary F. Keller: That is correct, Your Honor.

Unidentified Justice: How much is the bond?

Mary F. Keller: $2,500.

Unidentified Justice: Does an insurance company put that up?

Mary F. Keller: I believe they're... it's a bonding company.

Unidentified Justice: And what is the premium?

Mary F. Keller: I don't know that, Your Honor.

Unidentified Justice: And what is the term of a notary?

Mary F. Keller: Four years.

Unidentified Justice: Four years.

And most of them have other jobs, I assume?

Mary F. Keller: Oh, yes.

This is very much analogous to being a juror.

It is a periodic honor at the behest of the state to do a governmental function.

Unidentified Justice: Is it a political plum in Texas?

Mary F. Keller: Pardon me, Your Honor?

Unidentified Justice: Is it a political plum in Texas?

Mary F. Keller: Yes, Your Honor, it is.

[Laughter]

To the extent... but Your Honor, to the extent that it is part of the state's political community... and it clearly is, there is no question about that... this case involves political rights, not economic rights.

It is not an attempt to deprive somebody of their basic existence in the community.

And when the state confers political rights, the level of scrutiny is whether it is rational or not.

Perhaps Texas has given notaries more authority than they should have, given the level of scrutiny of application and the level of qualifications.

But that decision is not before this Court, whether the legislature has wisely allowed 300,000 notaries to find somebody in contempt of court.

The point is, Texas has given a great deal of authority to its notaries traditionally.

Unidentified Justice: Let me ask one other question about that contempt power.

Is that by statute?

Mary F. Keller: That is by statute, Your Honor.

Unidentified Justice: And you cite that statute in your brief?

Mary F. Keller: It is not specifically.

It's part of the--

Unidentified Justice: I didn't see it in your brief.

Mary F. Keller: --The statutory authority is 6618.

The notary also has the authority to hold someone in contempt in relationship to a deposition, and that is--

Unidentified Justice: Is this a statute you did not cite in your brief?

Mary F. Keller: --Not specifically cited.

It's part of the whole scheme for what the notary does, but that specific statute is not cited.

Unidentified Justice: I see.

But there is a statute that says notaries can hold people in contempt?

Mary F. Keller: Yes.

Yes, Your Honor, there is.

Unidentified Justice: And it was executed, exercised some 40 years ago?

Or was that before the statute was passed?

Mary F. Keller: It's not before the statute was passed.

It was challenged some 40 years ago, the last challenge to it.

Unidentified Justice: In the notary law?

Mary F. Keller: Presumably it's exercised on a daily basis.

I do not know that, Your Honor.

Unidentified Justice: When was the provision about contempt in connection with a deposition put into the statute?

That must have been an amendment.

Mary F. Keller: It's an old statute, Your Honor.

It is--

Unidentified Justice: Is that true, the only contempt case you can give us is one that was lost?

Mary F. Keller: --That's the only challenge to it by habeas corpus, Your Honor, that I have been able to find.

Unidentified Justice: Is that the only contempt case that you can give us--

Mary F. Keller: It's the only reported case involving the contempt power that I have been able to find, yes, Your Honor.

Unidentified Justice: --It's so well established it's never been challenged.

Mary F. Keller: That's right.

Thank you.

REBUTTAL ARGUMENT OF CORNISH F. HITCHCOCK, ESQ. ON BEHALF OF PETITIONER

Cornish F. Hitchcock: Mr. Chief Justice:

I just want to make one response to a factual question from Justice Powell.

The bonding requirement in Texas is $25 in order to become bonded as a notary public.

If the Court has no further questions, we respectfully request that the judgment of the Fifth Circuit be reversed and the case be remanded with instructions to reinstate the judgment of the district court.

Thank you very much.

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

The case is submitted.

Featured:

Sure-Tan, Inc. v. NLRB - Oral Argument

Thu, 30 Aug 2012 22:15:11 +0000

Case:

Sure-Tan, Inc. v. NLRB

Media File:

82-945_19831206-argument

Related Transcript:

82-945_19831206-argument

Transcript:

ORAL ARGUMENT OF MICHAEL R. FLAHERTY, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Warren E. Burger: We will hear arguments next in Sure-Tan and Surak Leather Company against National Labor Relations Board.

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

Michael R. Flaherty: Mr. Chief Justice, and may it please the Court, is it an unfair labor practice for employer to ask the Immigration and Naturalization Service to investigate the immigration status of its employees?

That is the first and the most important issue presented in this case.

Can an employer be required to pay illegal aliens a sum of money equal to six months' pay under the National Labor Relations Act covering a period of time when the illegal aliens are not present in this country, when they are in Mexico, and they are not lawfully available for work?

That is the second issue presented in this case.

And can the National Labor Relations Board require an employer to write reinstatement offers in Spanish and to leave them open for a period of four years?

That is the third issue presented in this case.

The operative facts in this case begin on January 20th, 1977, when Mr. John Surak, the president of Sure-Tan, wrote this letter to the Immigration and Naturalization Service.

He asked the Immigration and Naturalization Service to investigate the immigration status of his employees.

Unidentified Justice: Incidentally, does he know the immigration status of his present employees?

Michael R. Flaherty: Your Honor, I don't know.

I have not asked Mr. Surak that, and so I just cannot answer that question.

In response to this letter, the INS came to Mr. Surak's facility and investigated the immigration status of the employees, and in response to this letter it was discovered that the illegal aliens... that the employees were illegal aliens, five of the eight of them listed on this letter.

They were immediately arrested by the INS, and they were permitted to execute an INS form whereby they acknowledged their illegal presence in this country, and then they voluntary agreed to return to Mexico.

The union filed an unfair labor practice charge against the employer, and the Labor Board returned a complaint, charging that Sure-Tan violated Section 883 of the National Labor Relations Act by discharging the employees when it sent this letter to the Immigration and Naturalization Service.

In an attempt to resolve this dispute, Sure-Tan sent letters offering reinstatement to the employees.

They were written in English, and they were sent on March 29th, 1977.

They asked the employees to report to work by May 1st, 1977, if they accepted the offers of reinstatement.

In the proceedings below, the Labor Board held that Sure-Tan constructively discharged the employees, in violation of Section 8(a)(3) of the Act by sending this letter to the INS requesting the INS investigation.

The Board ordered Sure-Tan to offer unconditional reinstatement to the aliens, and it ordered them to pay them back pay.

In response to this order, the board's own general counsel filed a motion for clarification, asking the board just what it meant by this order.

The general counsel observed in its motion for clarification that an order that required unconditional reinstatement with back pay, regardless of the aliens' immigration status, created a conflict with the immigration laws and policies.

It in effect served as an incentive for these aliens to re-enter the country illegally.

Well, the board denied the motion, but in the decision denying the motion, it said that the accrual of back pay should be tolled during the period of time when the illegal aliens were unavailable for lawful employment in this country.

The Court of Appeals upheld the order with certain modifications.

Under the Court of Appeals' enforcement decree, the illegal aliens would have to be reinstated by Sure-Tan only if they can establish at the time they present themselves for employment that they are lawfully available for work in this country.

With respect to the back pay issue, the Court of Appeals went way beyond the board.

It invented its own remedy, or so-called remedy.

It told Sure-Tan that it would have to pay each of these illegal aliens a minimum of six months' pay, regardless of whether they were lawfully available for work in this country.

This was on the theory that the illegal aliens would have remained in this country illegally for some period of time but for this request sent to the Immigration and Naturalization Service.

The Court of Appeals also held that Sure-Tan would have to write its own statement letters in Spanish, and it would have to leave them open for a period of four years.

The most important issue facing this Court in this case is whether an employer can be held liable under the National Labor Relations Act for reporting a violation of the law to the immigration authorities.

This case or this issue has already been decided by this Court six months ago in the Bill Johnson's case.

In Bill Johnson's, an employer... or employees picketed one of Bill Johnson's restaurants.

The owner of that one... of the restaurant told the employees he would get even with them if it was the last thing he did, and he made good on this threat.

He filed a civil lawsuit against the employees.

This Court held that the filing of a civil lawsuit was protected under the First Amendment right to petition the government, regardless of the employer's motive for filing that lawsuit.

That is precisely the issue that is presented in this case.

Sure-Tan's request to the Immigration and Naturalization Service was squarely within the First Amendment right to petition the government, just as was the lawsuit filed by Bill Johnson's Restaurants.

Unidentified Justice: What if it is found as a matter of fact that the employer acted solely because of his opposition to the union and the employees' desire to have a union?

What if it were found that that was the sole reason for his going to the INS?

Michael R. Flaherty: If that were found, it would make no difference, Your Honor.

The right of a citizen of this country to report a violation of the law is not conditioned upon the person's motive for reporting that violation of the law.

Unidentified Justice: Let's assume in the abstract that that's correct.

In its interaction with labor relations, isn't the board entitled to draw some inferences from the conduct?

Michael R. Flaherty: Certainly, Your Honor, and it does so in every case that involves motive.

Unidentified Justice: It did so here.

Michael R. Flaherty: Yes, it did so here.

Unidentified Justice: The board said, in effect, all right, this is an exercise of your right to petition the government, but in the circumstances in which you exercised that right, it has some other meaning to us.

Michael R. Flaherty: In essence--

Unidentified Justice: Isn't that what they did?

Michael R. Flaherty: --That is what they did, Your Honor.

They said that, yes, you have a First Amendment... Well, they did not address this directly, but assuming there is a first amendment right to petition the government, which certainly there is, they said, we are going to condition that right on your motive for exercising that constitutional right, and never before has this Court ever conditioned the right to exercise a constitutional right on a person's motive for doing so.

Indeed, if this... if administrative agencies--

Unidentified Justice: So you don't dispute the fact that there was an anti-union motive somewhere in this set of facts?

Michael R. Flaherty: --I cannot put myself in Mr. Surak's head, but I can certainly tell you there was a dispute between the union and the company, just as there was in Bill Johnson's Restaurant, and the--

Unidentified Justice: Now, so there was... the employer was motivated by an anti-union bias, I take it.

I know... that isn't the end of the case, I know, but--

Michael R. Flaherty: --Certainly not, and he--

Unidentified Justice: --But there was that in the case.

Michael R. Flaherty: --That was found below.

Unidentified Justice: Yes, yes.

Michael R. Flaherty: And that is not relevant, however, with--

Unidentified Justice: And sustained, and enforced.

Michael R. Flaherty: --That is not relevant, however, with respect to the right to exercise the constitutional right to report a violation of the law.

Unidentified Justice: Mr. Flaherty, are you sure that the right to turn in aliens to the... illegal aliens to the INS can be equated with filing a lawsuit in state court, the way you had in Bill Johnson's, for constitutional purposes?

Michael R. Flaherty: Very definitely, Justice Rehnquist.

Under the Nor Pennington doctrine, this Court has held repeatedly in many cases that efforts to enforce the law, whether they be through the filing of lawsuits, through petitioning, or through lobbying to seek stricter enforcement of the law by law enforcement agencies, or other petitions to the government, are within the First Amendment right to petition the government, and in the Foro Precision Metal case, which is cited in our reply brief, that precise issue was addressed by the Ninth Circuit.

It was a petition to the police by IBM for them to enforce the law that led to the indictment of 14 people, and the Ninth Circuit held squarely that that was within the First Amendment right to petition the government.

Unidentified Justice: But, Mr. Flaherty, isn't there a difference in the facts here?

At the time the letter was written that you have exhibited to us two or three times, your client didn't know whether there had been a violation of the law, did he?

Michael R. Flaherty: He had had reports several months earlier.

Unidentified Justice: He listed other people besides these who were not in fact illegal aliens.

Michael R. Flaherty: That is correct, Your Honor.

Unidentified Justice: So he really didn't know which were and which were not.

Michael R. Flaherty: He had received reports--

Unidentified Justice: That what?

Michael R. Flaherty: --that some of these employees were present illegally.

Unidentified Justice: Some of them were.

Michael R. Flaherty: And also--

Unidentified Justice: And he sort of just tossed a bunch over and said, look at all of them.

Michael R. Flaherty: --He had asked the employees after the election, before this letter was written, whether they were present legally, and a number of them said, no, they weren't, so he did know at that time.

At the time he wrote the letter, he did, Your Honor.

Unidentified Justice: Does the record show that?

Michael R. Flaherty: Yes, it does, Your Honor.

Unidentified Justice: Mr. Flaherty, in Bill Johnson's, is it possible it should be distinguished because there the employer was asserting, trying to assert in state court an alleged injury to the employer's own reputation?

The employer himself had suffered an injury that otherwise would not be redressed, and perhaps that is not the case here.

Michael R. Flaherty: The holding in Bill Johnson's focused on the First Amendment right to petition the government, and it said, for that reason, as well as--

Unidentified Justice: Well, I think the opinion also focused on the fact that the employer would have been left with no forum in which to pursue a remedy for an actual injury to the employer.

Does that distinguish this case?

Michael R. Flaherty: --I don't think so, Your Honor.

I think the First Amendment right to petition the government stands on its own, and that this Court recognized that in Bill Johnson's.

That was another factor that was present, but it was not a necessary factor.

It was not necessary to this Court's decision in Bill Johnson's--

Unidentified Justice: Well, it was certainly discussed by the Court, and apparently relied upon.

Michael R. Flaherty: --It was discussed.

It was relied upon.

But either one of those grounds, the First Amendment right to petition the government or the state's compelling interest in the maintenance of public peace were involved, and in fact in this case the reporting of a violation of the law is just as essential to the maintenance of the public peace as the filing of a civil lawsuit was in Bill Johnson's.

If anything, the right to report a violation to law enforcement agencies is more important to the public peace.

Unidentified Justice: But the complaint was not against these men.

It was against the union.

Michael R. Flaherty: I am sorry?

Unidentified Justice: The complaint was against the union.

Michael R. Flaherty: No, the letter, Justice Marshall, was--

Unidentified Justice: I am not talking about the letter.

I am talking about Sun-Tan's complaint.

It only came about when the union tried to organize.

Michael R. Flaherty: --That--

Unidentified Justice: Correct?

Michael R. Flaherty: --This letter was written after the union won the election.

That is correct.

Unidentified Justice: And that is what brought it on.

Michael R. Flaherty: This petition to the government is what brought on this case.

That is correct.

Unidentified Justice: Well, was the letter brought on by the election?

Michael R. Flaherty: I can... It was written after the union won the election.

Unidentified Justice: And that is what... it came after the election.

Michael R. Flaherty: That's correct, after the union won the election.

Unidentified Justice: And before the election, everything was hunky-dory.

Michael R. Flaherty: Well, before the election... it was after the election that he asked the employees whether they were legally present here, and they admitted that they were illegally present here.

Once he knew that, then he wrote the letter.

That is correct.

Unidentified Justice: Well, the board and the lower courts drew the inference from the factual situation, though, that he was animated by antiunion animus in doing this.

Michael R. Flaherty: That is--

Unidentified Justice: And certainly we don't review that sort of thing now.

Michael R. Flaherty: --No, we are not reviewing that.

We are not asking for that fact determination to be reviewed here.

That determination is irrelevant with respect to the right to report a violation of the law.

In the Quarles case, this Court observed that a person's right to report a violation of the law to law enforcement agencies was one of the essential privileges and immunities which arises out of the essential character of our form of government, which must be constitutionally protected, regardless of a person's motive for seeking enforcement of the law.

Unidentified Justice: What have lower courts done in the labor law area about instances where an employer has reported an employee out of an antiunion animus to law enforcement officers for commission of a crime?

Maybe it is theft, or assault, or whatever it is.

Michael R. Flaherty: Justice O'Connor, I am not aware of any other cases.

This is a case of first impression, to my knowledge, in this situation.

Unidentified Justice: I think it may be in this Court, but have there not been some other cases below in the dealing with reporting of criminal violations?

You are not aware of any, in any event?

Michael R. Flaherty: I am not aware of any, no.

Unidentified Justice: What was the issue in Johnson?

Was it the issue whether the board could enjoin the holding of the... the prosecution of the suit, or not?

Michael R. Flaherty: That is correct, and it was alleged that the suit was brought in retaliation for the employees exercising their concerted... their right to engage in concerted protected activities, and in retaliation for their having filed a complaint, and that is precisely what is presented here.

It is alleged that Sure-Tan's actions were undertaken in retaliation for these employees having voted in a union.

It is precisely the same situation.

And the First Amendment right to petition the government that was present in Bill Johnson's is just as present here as well, and drawing from the Nor Pennington line of cases, this Court has held that the right to seek enforcement of the law is privileged under the First Amendment regardless of why the actions were taken to enforce the law, as long as those actions were not a sham.

And in Bill Johnson's, this Court held that a sham would mean that there would have to be no reasonable basis for the actions taken.

Unidentified Justice: Mr. Flaherty, is it illegal for an employer to hire illegal aliens?

Michael R. Flaherty: No, it is not, Justice Blackmun.

Unidentified Justice: Well, if you prevail here, then isn't a way to avoid the confines of the Labor Act just to keep hiring illegal aliens, and when one gets into a labor bind, report them to the INS?

Michael R. Flaherty: Your Honor, in this case, Sure-Tan is subject to... they voted in the union.

The union stayed recognized.

It has to bargain with the union.

That was not a way out of a union recognition situation.

The union didn't go away.

It stayed there.

Furthermore, there is a back pay and reinstatement liability that is faced here.

Unidentified Justice: Could you have fired, without committing an unfair labor practice, could you have fired the illegal aliens for the reason that they were illegal aliens?

Michael R. Flaherty: For the reason that they were illegal aliens, certainly.

Certainly.

Unidentified Justice: And that would be a firing for cause under the collective bargaining agreement, if there was one?

Michael R. Flaherty: There was not a collective bargaining--

Unidentified Justice: I know.

I said, if there was one, could an employer fire an employee because he is an illegal?

Michael R. Flaherty: --That would depend upon the arbitration case law, and I have not read arbitration cases covering that, but I would certainly think that firing an illegal alien because he is an illegal alien would be just cause.

Unidentified Justice: Even after the union won an election?

Michael R. Flaherty: Yes, it would.

Yes, I definitely think it would.

Unidentified Justice: So you would say that if one of the reasons for firing a person is that he is an illegal alien, and another reason is because he is a member of the union, that it is not an unfair labor practice?

Michael R. Flaherty: Definitely not, in this case.

He had a right to--

Unidentified Justice: Definitely not what?

It is not a--

Michael R. Flaherty: --It is not an unfair labor practice in this case, because he had a right to report a violation of the law, a First Amendment right.

Unidentified Justice: --Well, I would think it would be a fortiori in this case if you are right in my example.

You say the employer could even fire an illegal alien himself.

He doesn't complain to the government at all.

He just fires him.

He says, you are an illegal alien, you are fired, but by the way, I am also firing you because you are a member of the union.

And you say that would not be an unfair labor practice?

Michael R. Flaherty: If there is antiunion animus?

Unidentified Justice: Yes.

Michael R. Flaherty: I would say no, then there would be an unfair labor practice.

Unidentified Justice: All right.

All right.

Michael R. Flaherty: Because in that case you are not reporting a violation of the law.

You are not exercising a constitutionally protected right.

In this case, you are exercising a--

Unidentified Justice: You are sort of... you are enforcing the law yourself then.

That is... the employer would be expelling the person instead of having the INS do it.

Michael R. Flaherty: --Well, no, in this case the enforcement of the law came by reporting it properly to the law enforcement agency.

If you just fired them, you would not be aiding the INS in the enforcement of the law.

Unidentified Justice: Well, I know, but you say you would be privileged to fire them without committing an unfair labor practice, right?

Michael R. Flaherty: You did not mention that there was antiunion animus in your hypothetical.

Unidentified Justice: Well, let's say there was not an antiunion animus, but there was a collective bargaining agreement that says you can't fire except for just cause, and he fires a bunch of employees because they are illegal aliens.

You say he has that privilege under the collective bargaining contract.

Michael R. Flaherty: Well, interpretation of a collective bargaining contract depends upon arbitration case law and the past history of the parties and so forth.

Unidentified Justice: Well, what is that law, do you think?

May you fire?

Michael R. Flaherty: I definitely think that they could fire under that circumstance, yes--

Unidentified Justice: Yes, yes.

But you couldn't fire them for that reason, if you also fire them for being a member of the union.

Michael R. Flaherty: --That would violate the labor laws.

But this case is distinguishable, quite distinguishable from that hypothetical, because in our situation there was a report made to the law enforcement agency reporting a violation of the law, and that, as this Court held in the Quarles case, is one of the fundamental privileges and immunities of all citizens.

It is clearly within the First Amendment right to--

Unidentified Justice: Mr. Flaherty, may I ask you a follow-up on Justice Blackmun's question?

Michael R. Flaherty: --Sure.

Unidentified Justice: You responded by pointing out in this case there was a remedy that was possible, but just as the general problem, would it not be true that if you prevail, an employer would be well advised to hire illegal aliens before they are organized and let them know promptly that if they do organize, they will be reported; if they don't organize, they won't be?

Wouldn't that be good... it seems to me it would make a lot of sense for a businessman who wants to have inexpensive unorganized labor.

Michael R. Flaherty: Well--

Unidentified Justice: Maybe that's fine.

I don't know.

But isn't that... that would be a natural consequence of your position, isn't it?

Michael R. Flaherty: --Regardless of how this Court holds, Your Honor, it is a possible consequence, yes, but if this Court were to hold that that is an unfair labor practice, to report a crime to the law enforcement agency, that would not end this problem at all.

Human nature being what it is, employers would make a telephone call rather than write a letter.

Unidentified Justice: But the result for which you are arguing would encourage the employment of illegal aliens by unorganized employers.

That much is clear, I guess.

Michael R. Flaherty: It is a possible consequence.

It is not an essential consequence.

Employers... people--

Unidentified Justice: Which in turn might encourage more illegal aliens to come to the country.

Michael R. Flaherty: --People hire illegal aliens for a number of reasons, whether it be to perform work that other people don't want to do because they work for less money.

There are a large number of reasons why people hire illegal aliens.

Unidentified Justice: But you think we should encourage the practice?

Michael R. Flaherty: Certainly not and I am not saying that this Court would--

Unidentified Justice: But the result for which you are arguing I think you have acknowledged would encourage the practice.

Michael R. Flaherty: --It is possible.

It is possible.

With respect to the... well, there is also a fundamental conflict in this case with the immigration laws presented by the board's order.

In effect, the board is holding Sure-Tan liable under the labor laws for assisting in the enforcement of the immigration laws.

Now, this just cannot be.

You cannot be held liable under one set of laws for helping enforce other laws, and this Court noted in the Southern Steamship case that the labor laws have to be interpreted and enforced in consonance with the immigration laws, and to hold someone liable under one law for enforcing another violates the Southern Steamship mandate.

Now, with regard to the back pay award, as we have argued, there was no violation of the National Labor Relations Act by exercising the constitutional right to report a violation of the law.

There should be no back pay award.

But under any circumstance, the award of back pay, six months' pay to illegal aliens covering a period of time when they are not lawfully available for work in this country is wholly inappropriate.

The board itself acknowledged that this was improper.

They would have tolled the accrual of back pay during the time that the illegal aliens were not available for employment, because they were in forced absence from this country.

Yet the Court of Appeals invented its own remedy.

It came up with a six-month back pay... essentially what was a fine that was imposed on Sure-Tan.

There is no reasonable basis for this six-month back pay award.

It is based on pure speculation, and as Judge Wood noted in his dissent, the rationale behind this back pay award seems to be to punish Sure-Tan for what it did.

Unidentified Justice: What if the only remedy the board imposed was an order to reinstate once the company... once the alien is back in the country legally?

Michael R. Flaherty: That would comport with immigration laws, certainly.

Unidentified Justice: Well, what about the labor laws?

Michael R. Flaherty: That would comport with the labor laws as well.

Unidentified Justice: Well, I know, but that would leave a remedy standing, a remedy which is premised on an unfair labor practice.

You say there is no unfair labor practice at all.

Michael R. Flaherty: Well, assuming, contrary to fact, that there was an unfair labor practice, a remedy that would--

Unidentified Justice: Well, I am just saying that in this very case, if the only remedy that had been imposed by the board was an order to reinstate once the... if and when the alien is back in the country legally, Now, you would still be here, I take it, because that remedy would be... the predicate for that remedy would be an unfair labor practice, was the fact that there was an unfair labor practice.

Michael R. Flaherty: --That's right.

Certainly we feel that there was not an unfair labor practice, and there should be no remedy.

There is no need for a remedy.

Unidentified Justice: Well, I know, but the board could have had full regard for the labor board... for the immigration laws, and you still would be here.

Michael R. Flaherty: If they had full regard for the immigration laws, then they would not have... first of all, they would not have imposed back pay for a period of time when they were not lawfully available for work.

Unidentified Justice: I guess what I am asking really is that the Court of Appeals may have been wrong in some of its remedy decisions, but that doesn't mean it was wrong in saying there was an unfair labor practice.

Michael R. Flaherty: Oh, I certainly think they were wrong in saying there was an unfair labor practice.

Unidentified Justice: But you are making two different arguments.

Michael R. Flaherty: Yes, I am making two different arguments.

Unidentified Justice: One, that there was no unfair labor practice because of the board's failure to integrate it with the immigration laws, and second, even if there was an unfair labor practice, that the Court of Appeals' substitution of a remedy was improper--

Michael R. Flaherty: That's correct.

Unidentified Justice: --even if there was a violation.

Michael R. Flaherty: That's correct.

Assuming arguendo there was a violation, then the remedy was clearly erroneous.

There should not have been an imposition of an arbitrary six-month back pay award during a period of time when the illegal aliens weren't available for work, because the board under its normal procedures would toll back pay.

Indeed, that's what it wanted to do in its decision denying the motion for clarification.

It said back pay should be tolled when the illegal aliens are not available for work, and certainly the illegal aliens should not be--

Unidentified Justice: Yes, but the board, under the board's order, wouldn't the tolling of back pay be ended if the alien came back to the country illegally, and was available for work?

Michael R. Flaherty: --I would certainly hope so.

Unidentified Justice: Well, I know, but under the terms of its order, the alien wouldn't have to be back here legally.

Michael R. Flaherty: Well, I think if they are not lawfully available for work is how I interpret that.

Unidentified Justice: I see.

Michael R. Flaherty: But I think certainly if there is any ambiguity in what they advised, it should be construed that way.

Otherwise, they would have an incentive to come here illegally in order to prevent the tolling of back pay, so they could keep the meter running by being here illegally, and that certainly would conflict with the immigration laws.

Unidentified Justice: Of course, you object to the ALJ's four weeks back pay as much as you do to the Seventh Circuit's longer period, don't you?

Michael R. Flaherty: Definitely.

Definitely.

In essence, what it does it, is conflicts with immigration laws.

It treats them as though they had a legal right to remain here for four weeks or six months even though they were not lawfully here to begin with, and they were returned to Mexico.

In essence, any back pay covering a period of time when they were not available for work treats the immigration laws as if they were of no consequence, and that type of a conflict with the immigration laws violates this Court's mandate in Southern Steamship that the remedies of the board have to comport with other fundamental Congressional objectives, those in the immigration laws.

With respect to the reinstatement offers, never before has the board required an employer to communicate with its employees in a foreign language, and yet in this case it tells Sure-Tan that it has to communicate in writing with these employees in Spanish.

It has to hire an interpreter to talk to these people.

The government is not even required to communicate with its citizens in a foreign language.

It is just fundamentally unfair and wrong to require a private employer to communicate with employees in Spanish when the government isn't even required to do so.

In fact, there are board cases--

Unidentified Justice: How did the employer communicate with them on the job?

Michael R. Flaherty: --By attempts to... a combination of, I believe, English and Spanish.

Unidentified Justice: At least he got the message across.

Michael R. Flaherty: He got the message across.

Pointing, and I really can't say, because I wasn't there, but it was a rather primitive communication, I would imagine.

With respect to the four-year reinstatement offer, never before has the board required that reinstatement offers be left open for a period of four years.

Traditionally the board has upheld reinstatement offers that have been held open for--

Unidentified Justice: On this question about the Spanish letter, there were about a dozen employees, right?

Michael R. Flaherty: --There were eleven employees, five of whom were--

Unidentified Justice: How much would it cost to translate eleven... translate one letter to eleven people?

Michael R. Flaherty: --I couldn't speak to that.

Unidentified Justice: About $1.25, I guess, something like that.

We are talking about de minimis.

Michael R. Flaherty: The courts have held and our brief points out cases to the effect that the government is not required to communicate in a foreign language with its citizens, and yet the board would require... impose that upon Sure-Tan, contrary to its prior cases.

It changes its own precedent, without any warning.

And with regard to the four-year reinstatement, that also is contrary to established precedent.

In conclusion, this case presents the exact same issue that was presented to this Court in Bill Johnson's Restaurant.

As this Court decided in Bill Johnson's restaurant, it should hold that Sure-Tan had a constitutional right to report a violation of the law, and that it did not commit an unfair labor practice by doing so.

Chief Justice Warren E. Burger: Your time has expired, Mr. Flaherty.

Michael R. Flaherty: Thank you.

Chief Justice Warren E. Burger: Mr. Kneedler.

ORAL ARGUMENT OF EDWIN S. KNEEDLER, ESQ., ON BEHALF OF THE RESPONDENT

Edwin S. Kneedler: Thank you, Mr. Chief Justice, and may it please the Court, before beginning, I would like to emphasize two points.

One, in response to Mr. Justice White's question, this was a case in which the board held that the employer was motivated solely by antiunion animus.

We don't view that as an essential attribute of the violation.

Under Transportation Management the test would be whether the employer would have done it even in the absence of the antiunion animus, but here the court found that aggravated circumstance.

And secondly, in petitioner's brief on the merits, they acknowledge that they were not challenging the board's finding of antiunion animus in the circumstances of this case.

Now, this Court recognized in Plyler versus Doe and in United States versus Brignoni-Ponce that illegal aliens are especially vulnerable to exploitation by employers, and in De Canas, the Court recognized that the acceptance by illegal aliens of jobs on substandard conditions has the effect of depressing the wages and working conditions of lawfully resident American workers, and also undermines the effectiveness of labor unions.

We submit that the appropriate accommodation of the National Labor Relations Act and the immigration laws in the circumstances of this case requires a recognition of those realities.

Unidentified Justice: Well, Mr. Kneedler--

Edwin S. Kneedler: Yes.

Unidentified Justice: --I am interested to know whether the government takes the position that the board's result here can be defended only in the circumstances of the immigration laws.

Let's suppose that I am Mr. Surak, and I have this outfit in Chicago, and an effort is made to unionize my employees, and I hire a private investigator to find out what I can get on the people who are leading the union investigation move.

I find that one of them, who is an employee, is a fugitive from Indiana, he has escaped from prison in Indiana, not under any immigration charge, you know, on an armed robbery charge.

Now, the reason I made the investigation in the first place is, I want to hurt the union if I can.

I am an employer, and I don't want to be unionized.

Is it an unfair labor practice for me at that point to turn him in to Illinois authorities to be extradited to Indiana?

Edwin S. Kneedler: That would present much different considerations.

Our position here depends not just on a construction of the National Labor Relations Act, but also the policies with respect to employment that are reflected in the other federal statute, the immigration laws.

The proper accommodation would have to look to the other statute that the employer was seeking to assist in the enforcement of, and for instance the fact that it was a felony, a serious crime, a fugitive, and also that the... I think it is appropriate to consider the particular utility of this device to employers, as Mr. Justice Stevens was pointing out, the utility of this device to employers to avoid the policies of the Labor Act, I think that those same policies would not be present with respect to--

Unidentified Justice: Well, but the obligation of the employer at least by statute and case law is much the same.

The Ninth Circuit has held, hasn't it, that the employer has an obligation to notify the INS in these circumstances?

Edwin S. Kneedler: --Well, what the Ninth Circuit suggested in the passage that has been quoted by petitioners is really that it is not the board's function to enforce the immigration laws by excluding illegal aliens or determining the documentation of illegal aliens and excluding them from board protection, that the employer should take that problem to the Immigration Service if that is his point, that he wants to help enforce the immigration laws.

I don't think the Ninth Circuit purported to suggest that the employer should have an absolute immunity from his obligations under the Labor Act to do so for antiunion reasons, if that was the motivation.

I think the Ninth Circuit was making a much different point, that the enforcement of the immigration laws is essentially the responsibility of INS.

Unidentified Justice: Well, in Mr. Justice Rehnquist's example of the felon, the fugitive, would all the board have to do is find that the employer wouldn't have fired him except for an antiunion animus, and wouldn't have turned him in except for that?

Is that all they have to find to find an unfair labor practice?

Edwin S. Kneedler: Well, that is ordinarily what is--

Unidentified Justice: He gets on the stand and he testifies.

Well, why did you turn him in?

I turned him in because he was a ringleader in this movement towards the union, but of course, and when I found out he was a felon, I could easily get rid of him, so I turned him in.

Is that all the board would have to find?

Edwin S. Kneedler: --Again, I think that because of this--

Unidentified Justice: Well, that is all there is.

Edwin S. Kneedler: --Well, yes, in finding the normal unfair labor practice, that is true, but my question or my point is that there may be--

Unidentified Justice: What is abnormal about that?

Edwin S. Kneedler: --Well, nothing, if one looks only to the purposes of the immigration laws.

My only point was that as in Bill Johnson's, the Court sometimes feels that it must look outside the immigration... or outside the Labor Act to see whether there are countervailing considerations, what the Court said in Bill Johnson's.

It might preclude the board from finding an unfair labor practice, even when the other--

Unidentified Justice: So the policy of enforcing the laws against murder or something are stronger than enforcing the immigration laws.

Is that any critical part of your submission, that the interest in enforcing the immigration laws just isn't that strong?

Edwin S. Kneedler: --No, certainly the Department of Justice is--

Unidentified Justice: One crime is different than another?

Edwin S. Kneedler: --No, but there are other--

Unidentified Justice: The board is entitled to weigh each crime and make final decisions for the whole country as to what laws ought to be--

Edwin S. Kneedler: --No, what we are suggesting is with particular reference to the National Labor Relations Act.

The board has never found an unfair labor practice in any other circumstances insofar as I am aware, where an employer has reported--

Unidentified Justice: --So your answer is yes, it does make a... the board does sit to decide which laws are to be ignored and which are not.

Edwin S. Kneedler: --No, I--

Unidentified Justice: Or it can pick out the immigration laws at least, you say.

Edwin S. Kneedler: --Well, it is not the board's own assessment of that.

This is the position of the United States in this case, that there are countervailing policies reflected in the Immigration Act that reinforce the board's construction of the Labor Act in these circumstances.

Unidentified Justice: You mean sometimes it is all right not to report illegal aliens?

Edwin S. Kneedler: Well, absent an antiunion animus, and really, in a sense, an abuse of the reporting process, it would ordinarily be entirely appropriate and the responsibility of an employer or any other citizen to report.

What we are suggesting is that the policies of the immigration laws are designed to protect--

Unidentified Justice: Well, he has to be able to prove he loves the union before he can turn an illegal alien in?

Edwin S. Kneedler: --No, the initial burden is on the board to establish an antiunion animus.

Unidentified Justice: Let's try another one.

He knew all along, for 20 years, that this man was a felon.

And when the man joined the union, he blew the whistle on him.

Edwin S. Kneedler: Well, another... again, it might depend on the application of misprision of felony statutes, which is another consideration that would apply in the area of murder or any other felony.

It is a federal crime, and it is, I would assume, a crime under the law of most states not to report a felony.

So, if we are talking about an employer who has knowledge of a felon in his employ, that countervailing policy and the legislative judgment reflected in the statutes about reporting a felony I think might well override the finding of an unfair labor practice in those circumstances.

Unidentified Justice: Do you think you could support your position by saying that of course there is a duty to report illegal activity, there is a civic duty, and there is a First Amendment right to do it on the edges of that, but the National Labor Relations Board isn't concerned about civic duty or other factors.

If there is an antiunion animus, that supports their position no matter what the other considerations are.

Would that take care of it?

Edwin S. Kneedler: Well, that would obviously... I mean, that would control this case, yes.

Unidentified Justice: Even where--

--right across the board.

--Indiana felon, too.

Edwin S. Kneedler: That's right.

So we are not urging the Court to adopt a broad rule like that.

We are narrowly... we are eliminating felonies here.

The only crime that an alien who enters the United States illegally in the vast majority of cases commits is a misdemeanor.

I don't want to denigrate the fact it is a misdemeanor, but Congress has ranked the offenses, and the board can take some guidance from that.

Unidentified Justice: Mr. Kneedler?

Edwin S. Kneedler: Yes.

Unidentified Justice: In the example you have been discussing for the last five minutes, let's assume that the felon who escaped from Illinois or wherever it was was sent back and put in prison for four years.

Would the board have had authority to demand that he be reinstated at the end of the four years?

Edwin S. Kneedler: Well, we would first have to determine whether the board could find an unfair labor practice.

Unidentified Justice: Well, let's assume, as I think Justice Rehnquist said, in reporting this fellow, the employer said quite candidly he was a leader of this antiunion movement, so I thought I had better report him, get him off my back.

Edwin S. Kneedler: Well, I have suggested that in the case of a felony or a murder, a crime like that, that the board, although it hasn't addressed it--

Unidentified Justice: The board would have to reinstate him after?

Edwin S. Kneedler: --No, I am suggesting there may not be a violation in those circumstances, so the question of reinstatement would never be reached, but--

Unidentified Justice: If... I don't quite see the distinction.

Why wouldn't the board not only require the re-employment at the end of four years, but also compel an employer to send him six months' back pay to the prison?

Edwin S. Kneedler: --Well, the board does not reach the question of remedy, either reinstatement or back pay, until it has first found that the employer has violated the Act, and in the situation of a felon and the employer's reporting of a felon, if the board did not find for the reasons that I have suggested that the employer had violated the Labor Act, then there would be no occasion to impose a remedy, but in the situation where the board does find a violation of the Act, as here, because of the appropriate accommodation of the two statutes leads to that result, then it is appropriate for the board to consider the normal remedies, which are under 10(c) of the Act reinstatement with or without back pay, and then at that point the board would determine whether reinstatement and back pay were appropriate in light of the policies of the statute that the employers relied upon.

Unidentified Justice: That wouldn't encourage people to report crime, would it?

They might be caught in the middle between a legal obligation to report it, quite apart from the First Amendment, and what you say the board might feel free to do.

Edwin S. Kneedler: Well, in this circumstance, I think it is important to stress the narrowness of the rule we are suggesting.

Unidentified Justice: Are you saying that the only crime to which your argument applies is where one employs an illegal alien and then discharges him?

Edwin S. Kneedler: That is all that is presented here, and that is all we are submitting here.

I don't want--

Unidentified Justice: I understand that, but it seems to me the principle that you advocate is not going to be easy to carry.

Edwin S. Kneedler: --Well, there are affirmative indications in the purposes and background of the immigration laws to reinforce that conclusion here, purposes that I would think would be absent under most state criminal codes in the commission of a murder or something like that, and Congress has enacted two statutes here that have to be given due consideration by the board and the Court.

And Congress fashioned an express exemption for employment of illegal aliens insofar as employers are concerned.

It did that at the same time it was strengthening, it said, the laws against illegal immigration into the United States by enacting a prohibition against harboring, but Congress carved out employers from that prohibition.

Now, obviously, Congress did not expect that the very employers who would take advantage of that immunity would turn around and report the employers immediately upon doing so and thereby sacrifice whatever advantage they had acquired by hiring the illegal aliens.

Unidentified Justice: I am not so sure that it is just the immigration law.

I think it is the whole Title 18.

Edwin S. Kneedler: Well, but in the immigration laws, there is the affirmative... there is the affirmative support for the decision of the Court of Appeals in this case, and in the typical Title 18 offense, I would think you could not find that support.

Unidentified Justice: Well, maybe you will tell me exactly what was the violation of the labor law.

Edwin S. Kneedler: In this case.

Unidentified Justice: In this case.

Edwin S. Kneedler: Yes, sir.

In this case, the violation of the labor law was the reporting of the illegal aliens to the INS in retaliation for the union activities.

Unidentified Justice: Well, why wouldn't that apply to the report of spitting on the sidewalk?

Edwin S. Kneedler: Well, if I could go back, in a cast like... Let me go back to Bill Johnson's, and really, what petitioner is really arguing here is that there is an implied exception from the labor laws for his conduct because of the policy favoring reporting of crimes and the policy of enforcing the immigration laws, and the question is whether the Court should recognize an implied exception for retaliatory conduct that would otherwise be a violation of the Act, and that requires looking to the competing statute, and here it is a violation because the policies of the competing... of the other statute, the immigration laws, are--

Unidentified Justice: Or the Constitution.

Or the Constitution.

Edwin S. Kneedler: --Well, petitioners do rely on the Constitution.

I--

Unidentified Justice: What about that?

Edwin S. Kneedler: --Well--

Unidentified Justice: First Amendment.

Edwin S. Kneedler: --I would note in the first instance that they did not raise that before the board, before the Court of Appeals, or in the petition for certiorari here.

Putting that objection to one side, I think again, going back to Bill Johnson's, the distinctions between that case and this are instructive.

Unidentified Justice: What about the Nor Pennington line of cases generally?

Certainly there have been other competing laws involved such as the antitrust laws, and it has been claimed that companies or a litigant has resorted to the courts deliberately to discourage competition or to get them out of business, and it has been held that the resort... their utilization of the legal processes is constitutionally guaranteed.

Edwin S. Kneedler: Well, in those cases, those cases have involved, as in Nor itself, political activity, which is at the core of the right of petition political activity--

Unidentified Justice: What about California Transport, or whatever that was?

Edwin S. Kneedler: --Yes, that was an invocation of the adjudicative process before an administrative agency, and what the companies were doing in those circumstances fits within the language of the First Amendment and fits within this Court's decision in Bill Johnson.

They were petitioning for a redress of their grievances, and as Justice O'Connor pointed out, a grievance that was in a sense redress of a legal injury to themselves.

Unidentified Justice: So your answer to the constitutional claim is there is just no constitutional right, protected constitutional right to report a crime?

Edwin S. Kneedler: No, our submission does not go that far.

Our submission is--

Unidentified Justice: Well, what is it?

Edwin S. Kneedler: --that it is not an absolute right, and where the employer does it in retaliation for other protected activities by the person who is being reported, that there is not an absolute right to do so.

It must be remembered that the employees' activities here, even while protected by the National Labor Relations Act, also have constitutional overtones.

The right of association and to organize in the area of employment are also constitutionally protected.

So the employer's reporting of the violation was in response to activities that also have constitutional overtones.

Unidentified Justice: Well, but certainly it wasn't... the employer's reporting may have had an indirect effect on those activities, but since the people... the activities were being conducted by people who had no business being in the country, I don't see how you can fault the employer on that account.

And it was the government that expelled the people.

The employer didn't.

Edwin S. Kneedler: But the employer brought it about, and concededly in this Court did so for... solely for antiunion reasons, and in terms of the constitutional right, in re Quarles and Butler, which opposing counsel has cited, the Court did not suggest that a right to inform about violations of the law derives from the First Amendment.

In fact, Quarles was a prosecution under Section 241 of Title 18 for a conspiracy to interfere with rights protected by the Constitution or laws of the United States, and what was involved in that case was whether the federal government could protect its own processes by prosecuting people who in that case murdered someone who informed on a violation of federal law.

And so the very essence of federal sovereignty was involved to recognize that the constitutional... the Constitution required the federal government to protect informants.

Unidentified Justice: Mr. Kneedler, may I ask another question?

Am I correct in understanding that the Court of Appeals ordered the company to pay six months' back pay regardless of whether or not the former employee returned legally to the United States?

Edwin S. Kneedler: That's correct.

The Court of Appeals ordered a minimum six-month back pay.

Unidentified Justice: Right.

Well, let's assume, for example, that one of these employees called up the employer and said, I am now back in the United States.

I have got a good job down in St. Louis.

Will you send me that six months' pay, please?

And the employer said, well, look, are you lawfully in the United States at this time?

And the fellow said, no.

He said, I don't have to be lawfully here to get my money.

Could the employer report him then?

And not pay the money?

I guess he would have to pay it under the Court of Appeals order.

Edwin S. Kneedler: Unless it were shown that the employer was acting for some antiunion reason under the Court's decision, he could, and I am not sure what the antiunion reason would be after the employee had long since left.

Unidentified Justice: Did the board suggest this remedy, or was it... did the court come up with it by itself?

Edwin S. Kneedler: The board has not--

Unidentified Justice: The six months.

Edwin S. Kneedler: --The board had not ordered it in its decision.

The ALJ had recommended that the board consider some minimum award of back pay.

Unidentified Justice: Who brought it up in the Court of appeals, anybody--

Edwin S. Kneedler: I think it was sua sponte.

Unidentified Justice: --Sua sponte?

And are you defending that here?

Edwin S. Kneedler: Yes, we are in this case.

The board did not purport to adopt a general policy to govern all such cases, but it did accept the--

Unidentified Justice: Ordinarily isn't it the board's job, not the courts, to specify a remedy?

Edwin S. Kneedler: --That's correct, and as we point out--

Unidentified Justice: And why is it all right for the Court of Appeals here to do something that the board hadn't done?

Edwin S. Kneedler: --Well, we don't suggest that it is.

In fact, we--

Unidentified Justice: Well, you are defending it, you said.

Yes.

Edwin S. Kneedler: --Well, the board was... in this particular case, the board was willing to accept the suggestion on remand, and to adopt that, so as far as the six-month back pay, that is the board's position in this case.

Unidentified Justice: That is the order finally entered by the board?

Edwin S. Kneedler: That is... well, the board proposed a judgment to the Court of Appeals, and that was the Court of Appeals' judgment in the particular case.

Not that that is a new proceeding.

Unidentified Justice: Is that often done?

Edwin S. Kneedler: I think it is quite unusual.

Unidentified Justice: They don't order back pay to someone who isn't available for work, do they?

Edwin S. Kneedler: No, it--

Unidentified Justice: Here is somebody out of the country who can't legally enter.

It is an extraordinary thing to order.

How can you defend that?

Edwin S. Kneedler: --The employee's unavailability for work is directly attributable to the employer's unfair labor practice, and under the board's policies where the employer has caused the employee's unavailability for work because of injury, because of--

Unidentified Justice: But the remedies are not supposed to be punitive.

They are supposed to help the employee, but they are not normally extended when the employee is unavailable for work.

It just seems like a most unusual requirement.

Edwin S. Kneedler: --What I am suggesting, though, is that even where the employee is unavailable, if the employer is responsible for causing the unavailability, the board has in the past approved the award of back pay, and here the employer is responsible for the employee's unavailability.

Now, to be sure, the alien is, too.

Unidentified Justice: Doesn't that encourage, as Justice Powell suggested, another illegal entry to come and see about the money, and doesn't that fly right in the face of our immigration policies?

Edwin S. Kneedler: No, the award of the back pay in this case is not contingent upon the alien's re-entering the country.

The back pay award would be paid to the alien even if he remained in Mexico.

Unidentified Justice: You is supposed to just mail it to him, if you've got his address?

In pesos?

Edwin S. Kneedler: That's correct.

That's correct.

Unidentified Justice: That's just a fine, then, for violating the law, I guess.

Edwin S. Kneedler: It is not a fine--

Unidentified Justice: Close to it, isn't it?

Edwin S. Kneedler: --No, I don't... I think it's quite different from a fine, because the ordinary remedy in an unfair labor practice, discriminatory discharge case is reinstatement and back pay.

The employment relationship between the employer, and the employer here was not unlawful insofar as federal law is concerned.

The alien had an illegal status, but the employment relationship was not unlawful.

Because it was not, then it is not contrary to the immigration laws to recognize that employment relationship and apply the normal back pay remedy in those circumstances.

Unidentified Justice: So the employer ought to just feel lucky that it was confined to six months.

Edwin S. Kneedler: Well--

Unidentified Justice: Because the employment relation hasn't been legally terminated yet.

And back pay ought to run forever.

Edwin S. Kneedler: --Well, we certainly don't suggest back pay should run forever, and the six-month figure--

Unidentified Justice: Well, there is just as much reason for running it a year as six months on your theory.

Edwin S. Kneedler: --Well, at some point the amount of the back pay might become so substantial that concerns about its being punitive rather than simply remedial might be raised, and indeed six months may be toward the cuter limit of the amount of back pay that should be awarded.

Maybe the ALJ's decision as a general rule would be more appropriate.

But if there is no back pay awarded, then the employer has really no financial disincentive to evade the purposes of the immigration laws in these circumstances.

Unidentified Justice: Hasn't the Court... hasn't this Court over the years said that we pay great deference to the Labor Board provisions for remedy and things of that kind because they are dealing with it all the time, and they develop what we call expertise?

What expertise does the Court of Appeals have in these areas?

Edwin S. Kneedler: Well, generally none, and as I suggested--

Unidentified Justice: About the same as ours, wouldn't it be?

Edwin S. Kneedler: --Well--

Unidentified Justice: Not that bad.

0 [Generallaughter.]

Edwin S. Kneedler: --The board is the expert agency, and as a rule the matter ought to be remanded to the board.

Unidentified Justice: And the Courts of Appeals, all appellate courts ought to leave remedies, the devising of remedies to the agency that is very experienced and can understand its impact on the whole system rather than just one aberration of this kind?

Edwin S. Kneedler: That's correct, but a remedy such as this we think is entirely appropriate, because, again, deferring to the board's expertise, the normal rule is that unless there is some effort to make the employee whole, the purposes of the Act will not be effectuated which Section 10(c) requires.

Unidentified Justice: There is legislation pending in Congress to make it illegal, to make it an unlawful act, a crime to hire an undocumented alien.

Suppose that legislation passed.

Would the board or anybody else be entitled to make a remedy that would give back pay?

Edwin S. Kneedler: Oh, I would certainly think not.

Unidentified Justice: Not if they pass that legislation.

Edwin S. Kneedler: No, if the employment... in no circumstances.

The employment relationship would then become illegal, and for the board to order the reinstatement of the employee to an illegal relationship and to pay him inconsistent with such a statute would clearly be improper, but as I said, the employment relationship is not illegal under the immigration laws.

Unidentified Justice: Let me go back to this dichotomy that seems to be interesting everyone about the employer doing the noble, patriotic, and altruistic thing in reporting these illegal aliens.

The Labor Board historically has penalized employers or unions for doing good things if they were in violation of the Act.

Hasn't that been so?

Edwin S. Kneedler: That's correct.

Unidentified Justice: In other words, suppose the employer on the day before Christmas, and there is an election coming up, sends a caterer out with a complete Christmas dinner for every employee and maybe a case of scotch along with it.

Presumably he is doing a good Christian thing.

Edwin S. Kneedler: Right.

Unidentified Justice: But he might get in trouble with the Labor Board for doing that, might he not?

Edwin S. Kneedler: That's right.

That's correct.

The Labor Act does attach consequences to things that would otherwise be entirely lawful.

Unidentified Justice: So when he reports the criminal conduct of these employees being here illegally, he is doing his patriotic and civic duty, but he might get penalized for that properly, too.

Is that not so?

Edwin S. Kneedler: That's correct, and we suggest that--

Unidentified Justice: But you aren't asking for all... that is more than you ask for.

Edwin S. Kneedler: --Yes, we are not saying everything that he... every report he makes, but in the circumstances of this case, we think that that... we believe that that is entirely appropriate.

I would like to address Bill Johnson's and the First Amendment issue for just a moment, if I could.

The First Amendment by its terms refers to petitioning for redress of grievances.

That is what was going on in Bill Johnson's, because the employer went to court to try to get a remedy for a legal injury.

That is not this case.

There was no legal injury suffered by the employer here.

The other distinguishing factor, countervailing consideration in Bill Johnson's was the deeply rooted interest of the states in providing a remedy for wrongs.

That is not... that federalism question is not presented here.

A last distinguishing factor is that the employer himself knowingly facilitated the employment of the illegal aliens in this case.

It does not come with good grace, I submit, for the employer to then turn around and rely on the immigration laws, whose violation is encouraged as a basis for avoiding liability under the labor laws.

This is not the first occasion in which these concerns have been raised, even with this employer.

This employer was the subject of prior unfair labor practice proceedings in 1973 in which the board then found that except for a few senior employees, all of the employer's employees were Mexican nationals, and on that occasion the employer again had intimidated his Mexican employees by making it clear that they would be fired and he would hire another one if they supported the union.

So this case highlights very strongly the concerns that underlie our submission here, and that is that if, as Justice Stevens pointed out, that an employer would have a powerful incentive and weapon to hire aliens in violation of the immigration laws if the decision of the Court of Appeals were reversed in these circumstances, and that would subvert the purposes of both the labor laws and of the immigration statutes.

Unidentified Justice: Well, it might depend on what the Court said if it reversed, might it not?

Edwin S. Kneedler: I was referring to if the Court were to find that this was not an unfair labor practice in this case.

Unidentified Justice: Thank you, gentlemen.

The case is submitted.

The Honorable Court is now adjourned until tomorrow at 10:00.

Featured:

Cabell v. Chavez-Salido - Oral Argument

Fri, 09 Jan 2009 14:47:30 +0000

Case:

Cabell v. Chavez-Salido

Media File:

80-990_19811103-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF WILLIAM F. STEWART, ESQ., ON BEHALF OF THE APPELLANTS

Chief Justice Burger: We will hear argument first in Cabel versus Chavez-Salido.

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

Mr. Stewart: Mr. Chief Justice, and may it please the Court, this case involves the validity of state citizenship requirements for certain specified classes of public employees.

It is an appeal from a decision of a three-judge federal court holding that it was unconstitutional for California to require its probation officers to be citizens, and that further, California's statutory scheme which required peace officers in several enumerated categories to be citizens was unconstitutionally overbroad.

The plaintiffs in this case were all applicants for only one peace officer position, that of deputy probation officer with the County of Los Angeles.

This is the second appeal in the case, the Court having granted the appeal and remanded it back to the three-judge court for reconsideration in light of its recently published decision in Foley versus Connelie.

The second time around, the District Court again by a two to one vote held that it was unconstitutional to require citizenship of deputy probation officers, and that the statute was unconstitutionally overbroad.

California's statutory scheme sets forth many enumerated and specific categories of peace officers, and also sets forth the qualification for peace officers, one of which is citizenship of the United States.

The California statutory scheme also considers and imposes certain training requirements on the enumerated categories of peace officers.

This case calls once again on this Court to consider as it did in Foley and Ambach whether certain occupations, public occupations, in this case probation officers, are of such a nature that they can be constitutionally limited to citizens.

The second issue, of course, is whether or not the California statutory scheme was unconstitutionally overbroad.

We believe that the three-judge federal court seriously erred when it concluded that the probation officer's position was not of a nature that citizenship could legitimately be required.

Unidentified Justice: Mr. Stewart, when you say that the scheme was considered overbroad, I take it you are referring to the Court's language in Sugarman against Dougall that a narrowly tailored scheme would do.

Do you think that has to do with statutory draftsmanship as to what positions are included and what are not?

Or just rather vague language in the statute itself?

Mr. Stewart: I think that the Sugarman language should be limited to the context of that particular case in the sense that in Sugarman the New York statute struck down encompassed all classes of civil service servants in New York without distinction.

That's the--

Unidentified Justice: Well, didn't the Court's language, our Court, our language focus on the fact that it included garbage collectors?

Mr. Stewart: --That is right, Your Honor.

It was overbroad because it included all categories of civil servants, from garbage collectors to clerk typists to perhaps police officers and the like.

Unidentified Justice: The California statutes are just about as bad as New York, aren't they?

You cover cemetery sextons and toll takers, and demand citizenship for those as well, don't you?

Mr. Stewart: Well, we no longer demand citizenship of sextons, Your Honor.

Unidentified Justice: Well, I am glad to hear that.

Mr. Stewart: The California legislature in 1980 took another look at the statute, and there were several categories that were eliminated, of which one category was cemetery sextons, custodial officers, and there were several other categories, but the difference between the California statute and that of New York is that they specifically for one thing, it deals with one generic class, that is, a peace officer.

They all possess certain peace officer characteristics.

Secondly, each of the specific peace officer categories is specifically delineated in separate subsections of the code, so we have one section dealing in our case with probation officer, another dealing with sheriffs and police officers, another one dealing with highway patrol and various other categories.

Unidentified Justice: Well, this case just deals with probation officers.

Mr. Stewart: Precisely, Your Honor.

This case--

Unidentified Justice: Why should this person be entitled to say the statute is invalid because it applies to some other people, too?

Mr. Stewart: --That is exactly our point.

The plaintiffs in this case, all three of them are applicants for only one of the classified statutory positions.

Unidentified Justice: Do you thank Sugarman held that somebody had standing to do that, or only that the overbreadth was evidence of... was relevant to whether and what kind of a justification the state might claim?

If you are claiming a certain justification, it is awful hard to say that justification would apply to just everybody.

Mr. Stewart: That is exactly right.

We--

Unidentified Justice: And if it purports to, it tends to impugn the justification.

Isn't that what--

Mr. Stewart: --That is the position that we... that is the way we read Sugarman, Your Honor.

Unidentified Justice: --Well, Mr. Stewart, if we were to agree that deputy probation officers as police officers cannot be required constitutionally to be United States citizens, do we have to reach this overbreadth argument at all?

Mr. Stewart: I don't believe you do, Your Honor.

Unidentified Justice: No.

Mr. Stewart: I think that that question--

Unidentified Justice: Even though it says peace officers, the second question, but since the only three applicants here are deputy probation officers--

Mr. Stewart: --That is right.

I don't think you need to reach the other argument.

Unidentified Justice: --What if we held that they may be excluded?

Mr. Stewart: May be limited to peace officers.

I think then that--

Unidentified Justice: I mean, suppose we hold that the state may require probation officers to be citizens?

Mr. Stewart: --I think then that the Court need not consider the overbreadth question, because in this particular case the applicants were just for the deputy probation officer position.

Deputy probation officers are specifically declined as a precise class of peace officer in the statute.

It is not a generic term.

And that the other categories, if they are constitutionally defective, should be addressed in a separate suit with parties withstanding, and where the evidence could be developed as to the particular tasks involved in that... in those jobs.

In this case, the trial court, by simply saying that the California statute was unconstitutionally overbroad, without consideration in detail of the sub-categories of peace officers, concluded that they were not legitimately restricted to citizens, and completely eliminated the citizenship requirements, some of which, for highway patrolman, police, and sheriff, this Court has already held are legitimate qualifications.

Unidentified Justice: Well, then, Mr. Stewart, that is to suggest that no matter how we come out on Question One, we ought not answer Question Two.

Mr. Stewart: I believe that is the position I take, Your Honor.

Unidentified Justice: Yes.

Mr. Stewart, you have three persons involved here, don't you?

One of them is now a probation officer.

Mr. Stewart: I don't believe so, sir.

He left county service.

Unidentified Justice: I thought the briefs indicated he had acquired his citizenship and was employed.

Am I wrong?

Mr. Stewart: No, I believe the second opinion indicated that he had left county service after he had acquired his citizenship.

He is no longer a probation officer.

But the Court in, I believe it was a footnote in their second opinion, stated that his cause was still right because he still had his claim for back pay and other damages.

Unidentified Justice: What about the other two?

Have they acquired citizenship?

Mr. Stewart: No, they have not, Your Honor.

Nor did they indicate any intention to acquire citizenship.

Unidentified Justice: Just as a matter of information, you do have some peace officers in California authorized to carry arms who need not be citizens?

Mr. Stewart: I do not know whether that is a fact, sir.

This Court in the Sugarman case--

Unidentified Justice: I commend to you then California Penal Code Section 830.7.

Mr. Stewart: --Of course, not all peace officers, Your Honor, are authorized to carry weapons in California.

It is up to their particular--

Unidentified Justice: That, of course, is not what it said.

Mr. Stewart: --It is up to their particular jurisdiction or the employer that allows them to carry weapons.

In Foley and Ambach, this Court in a more precise and narrow context applied its guidance in Sugarman.

In Foley, the Court upheld the citizenship requirement for police officers, and in Ambach for teachers.

The question then is whether or not the job characteristics of a probation officer fall on the Foley-Ambach side, which justifies citizenship.

Measured against the criteria the Court considered in Foley and Ambach, we believe that the deputy probation officer positions clearly perform significant governmental functions that would justify the imposition of a citizenship requirement.

This Court perhaps other than attorneys are most familiar with the functions of a probation officer.

Unidentified Justice: Under California law, in practice, do they give the sentencing judge a pre-sentence report?

Mr. Stewart: Yes, they do.

They are required to provide a pre-sentence report in all cases.

Unidentified Justice: Do they recommend... are they authorized to recommend revocation of probation?

Mr. Stewart: Yes, they are, Your Honor.

They possess in California, I believe, all of the essential probation officer powers that exist in most states and in the federal government.

In fact, I believe on of the amicus for the Appellees indicated that there is really essentially no difference in the probation officer's powers in California between those exercised generally and also in the federal government.

So they possess the power to--

Unidentified Justice: Mr. Stewart, what is it about being a non-citizen, being an alien, that affects one's ability to prepare a pre-sentence report?

Mr. Stewart: --Well, if you zeroed in on just that one facet of the probation officer's functions, whether he was a citizen or not may not--

Unidentified Justice: Well, then, what about recommending sentence as opposed to probation?

Mr. Stewart: --I think that is a significant factor, because by making that recommendation, it assumes that the court will take some cognizance of it.

The probation officer is exercising a sovereign power of the government, making a recommendation as to the liberty of an individual, and it forms an extremely important part of our criminal justice process, which is bottomed on the concept of rehabilitation.

Unidentified Justice: But do you think there is something about being a non-citizen that means that that person can't do that job effectively?

Mr. Stewart: Not perhaps in a technical sense, but the same type of qualification would apply to a deputy probation officer as the Court found existed in Foley and in Ambach, particularly in Foley, because the probation officers here are involved closely as an integral part of the criminal justice system.

In a sense, they are almost an arm of the court.

Unidentified Justice: In all of the others, the officer involved deals with the whole public.

Isn't that true?

Mr. Stewart: Involves the entire public, sir?

Unidentified Justice: The officer can involve himself with anybody in the public, but the probation officer is limited to only probationers.

Isn't that a difference?

Mr. Stewart: I don't think it is a difference that is constitutionally significant because the probation officer--

Unidentified Justice: Why not?

Mr. Stewart: --because the probation officer performs activities on behalf of society as a whole.

There are many jobs in government that are significant, that perform significant governmental functions which do not on a daily basis meet all of the public.

I think that is too narrow a concept for determining whether or not the job performs significant governmental functions.

In the case of juveniles, the probation officer's capacity is much broader in California, because they come into contact with juveniles that may not be offenders, or have not got to the stage where they would be charged with some sort of criminal activity.

Unidentified Justice: But they are only juveniles.

Mr. Stewart: Pardon me, Your Honor?

Unidentified Justice: They are only juveniles.

They wouldn't come in contact with you or me, would they?

Mr. Stewart: Not unless we were--

Unidentified Justice: As long as we stayed out of trouble.

Mr. Stewart: --That's right, Your Honor.

Unidentified Justice: So it is different from a state trooper.

Mr. Stewart: It is more narrow in the sense of its contacts than a state trooper.

That is correct.

Unidentified Justice: Yes.

Is he more narrow in his contacts than, say, teachers?

Mr. Stewart: Yes, in the sense that the teacher would address a class or be associated with a class on a day to day basis, whereas a probation officer is directed primarily toward juveniles as a group or adult offenders.

Unidentified Justice: But teachers are addressed primarily to juveniles as groups, too, are they not?

Mr. Stewart: That's correct.

They do not relate in a broad sense to adults.

They focus primarily on the juveniles and those that are in their class.

But in both instances the probation officer performs a function representing the state on behalf of society as a whole, in attempting to establish rehabilitation, establish guidance for juveniles as well as adults, and I think that this particular function or facet of this position relates very closely to the significant governmental powers that this Court felt were important in determining whether or not citizenship could validly be required.

Unidentified Justice: Mr. Stewart, is there anything in the record to indicate how many probationers in Los Angeles each probation officer is responsible for?

Mr. Stewart: I believe it varies, Your Honor.

There is nothing in the record, but there were some remarks made by one of the amicuses as to the work load, but I believe their case load now is somewhere around 100 offenders.

Unidentified Justice: Why did the amicus think that was relevant to any of the issues in this case?

Mr. Stewart: They apparently felt because their work load was such that they were mere functionaries, and used that statistic to try to buttress their argument.

That is the only relevance that at least was expressed in their brief.

Unidentified Justice: Do you think that is relevant?

Mr. Stewart: No, I don't, Your Honor.

Unidentified Justice: Mr. Stewart, would you outline the duties of a probation officer with respect to juveniles?

Mr. Stewart: Yes.

The duties of a probation officer with respect to juveniles can be divided into perhaps two categories, those which could be considered delinquents and those that could be considered to be abandoned, neglected, or abused children in California.

As far as delinquents are concerned, they have jurisdiction to determine whether or not to take a juvenile into custody because of some offense, whether or not to divert him into the criminal justice system or to release him back to his parents or to some informal method of treating the individual.

They can determine whether or not charges should be filed against a juvenile.

The juvenile can be remanded to the custody of the deputy probation officer at the determination of the juvenile judge and put under a program of corrective behavior and restrictions somewhat similar to conditions of parole.

The probation officers in Los Angeles County run juvenile camps, have sole jurisdiction over approximately nine or ten juvenile camps in Los Angeles County.

With regard to the non-delinquent children, their powers are very extensive.

They act as sort of a parens patriae concept.

They can come in and seek to remove the child from the custody of its parents because of abuse or neglect.

Once again, the court can remand the juvenile back into the custody of the probation officer to be put under a program or put into his protective custody and moved into a foster home, or under one of the juvenile halls, not the juvenile hall in the delinquent sense, but we have a juvenile hall that has children that have been abandonded or neglected, and they were under the jurisdiction of the probation department up until just a couple of years ago, but in other counties they are still under the control of the probation department.

Unidentified Justice: Isn't that all under the supervision of the social worker?

Mr. Stewart: The only... only the abandoned, neglected, and abused child does the social worker have a role, Your Honor.

Unidentified Justice: You mean the probation officer can move the child from one status to another on his own?

Mr. Stewart: I was referring to a delinquent child.

Where the child is adjudged to be a delinquent, under a separate section of our code, the social worker does not have any role in that.

It is only in the abandoned, abused, and neglected category that the social worker has a role, and generally it depends on the county that you are in.

In Los Angeles County, the probation... the welfare department is quite extensive, and they do play a substantial role in the placing of the child into foster homes and the like.

Unidentified Justice: Mr. Stewart, does the record tell us anything about the offender population in the county?

I assume there must be some significant number of non-citizens, Spanish-speaking non-citizens who may be offenders in Los Angeles County.

Mr. Stewart: There is nothing in the record indicating the offender record or what their alien background is.

Unidentified Justice: Does the argument about the citizenship requirement as to most people necessarily apply with the same force if the probation officer's people with whom he deals, 100 or so offenders, if they are all non-citizens, Spanish-speaking, and so forth?

What is the relevance there for insisting that you not have, say, a non-citizen who might be more like the people he is responsible for?

Mr. Stewart: Well, the individual, whether he is an alien or not, is still under the jurisdiction of our system of criminal laws and our constitutional protection, so it is not similar to a situation where a probation officer may be acting outside of the country.

The probation officer is representing the court and our criminal justice system.

And secondly, as far as relating, I don't think that there is a substantial difference between whether he is alien or non-alien in terms of relating to a particular offender.

If it is a question of language, then we have the special category of Spanish-speaking probation officers in Los Angeles County that have preference in hiring, as a matter of fact.

They are citizens, but it was... they were designed to address the problem and perhaps some problems in language communication, but I do not feel that a non-alien probation officer would relate any better to a non-alien offender.

Unidentified Justice: Well, I just was wondering what in that particular category, what is it... does the citizenship requirement in that category perform a useful function?

I suppose it narrows the class of Spanish-speaking persons that are eligible for employment, and is that... One reason I ask the question is that a year or two ago we had a case involving correction officers called Minick, in which the state had an affirmative policy of trying to get different minority groups because they might be able to relate better with the offenders for whom they were responsible.

Here you have kind of a different approach to the problem.

Mr. Stewart: Well, we believe we can do it, but it doesn't require that he be a... or that citizens of the United States--

Unidentified Justice: Well, which you can't do.

You can't take aliens, as I understand your... or is there room for exceptions?

Can there be exceptions?

Mr. Stewart: --No.

Unidentified Justice: You have just tied your own hands in this area.

Mr. Stewart: Well, what I am saying is that having an alien probation officer does not in my view enhance the relationship between himself and a non-alien offender, that in Los Angeles County in particular there is a large number of citizen Spanish-speaking individuals of Spanish or Hispanic background that can relate very well with the criminal offenders, whether of the Spanish or other race, or whether he is an alien or he is not an alien.

Unidentified Justice: I suppose in Ambach versus Norwick the same argument could have been made that an alien Spanish-speaking Puerto Rican might have related better to students in New York schools than a citizen and nonetheless we upheld the New York requirement that teachers be citizens.

Mr. Stewart: And I believe it would apply equally well to the Foley case, because there have been efforts, of course, for the police department to more adequately or more broadly represent the structure of society, yet you upheld a citizenship requirement for police officers, and they relate as well to non-alien offenders.

I find no distinction between Foley and Ambach in that regard.

Unidentified Justice: Mr. Stewart, does the record show how many probation officers there are in the County of Los Angeles?

Mr. Stewart: The record does not show that.

I can represent to the Court what--

Unidentified Justice: It is a matter of public record, isn't it?

Mr. Stewart: --Yes, it is, and it is approximately 2,500.

Unidentified Justice: Twenty-five hundred?

Do you have any idea what percentage of those are Spanish-speaking citizens?

Mr. Stewart: I believe that the percentage of them are approximately, and this is a guess, in the vicinity of 20 percent, 15 to 20 percent.

Unidentified Justice: I suppose a guess would not be very helpful for us unless counsel on the other side would agree.

Mr. Stewart: Yes, I understand, Your Honor, but there is nothing in the record indicating that.

I can represent that the county does have the Spanish-speaking qualification, which allows a preference in hiring for probation officers.

Unidentified Justice: May I ask this, since I have interrupted you?

One of the Appellees had become a citizen.

May the other two apply for citizenship?

Have they been here long enough or whatever the requirements are that would entitle them to apply for citizenship?

Do you know?

Mr. Stewart: I am sure that they would, and I say that only because this case began in 1975, and it is now 1981, and I believe there is a five-year--

Unidentified Justice: The record doesn't show whether they could have applied in 1975.

Mr. Stewart: --I don't believe it does.

Unidentified Justice: Mr. Stewart, some of the writers in this field have suggested that the regulation of aliens has really been pre-empted by the federal government.

I would like to ask you whether the federal government requires probation officers to be citizens.

Mr. Stewart: As I understand it, the federal government requires all their civil servants to be citizens.

The Court considered the federal government's restriction to citizenship in the Hampton case, and I understand that the President then issued a directive requiring citizenship of most classifications of civil servants.

I may be wrong, but I believe that they did.

Unidentified Justice: Well, administrative exceptions can be made, can they not, in the federal government to employ aliens?

Mr. Stewart: I am sure that there can, Your Honor, yes.

Unidentified Justice: If the convicted criminal has any rights in the area, is there anything to the notion that an American citizen might think he had some right to have a probation officer supervising him or advising the court about him who was not an alien citizen of another country?

Do you think the criminal defendants have any rights in the matter?

Mr. Stewart: I don't think the criminal defendants have a right to a particular type of probation officer.

I think that is up to the court and the probation authorities to determine the best qualified probation officer without regard to whether he is an alien or not an alien.

I have emphasized the power of the probation officer with regard to the criminal justice system, but it is clear that in that exercise of power they exert or execute vast discretionary powers, not only with the pre-sentencing report and recommendations to the court.

They act in a quasi-judicial capacity and have teen held to act in that capacity and are entitled to immunity as a judge would be for acting in a quasi-judicial capacity.

They also possess peace officer status, and while it is not exercised to the same extent as a policeman, they can exercise a peace officer status and take a probationer who has violated probation into custody.

They exercise vast discretion in determining whether or not a condition of parole has been violated, and if it has, what should be the disposition.

It does not necessarily follow that he will automatically request a revocation of parole.

I think just by virtue of the extensive, expansive authority of a probation officer over juveniles, that itself would be sufficient to justify the imposition of a citizenship requirement.

They are clearly when you review their entire functions not mere functionaries, but they form the core of the state's philosophy regarding rehabilitation of criminals.

As the crime rate increases, the function of a probation officer becomes more and more important.

As the ABA announced or stated in their report on probation, that it is one of the central features of our criminal justice system, and more and more the courts have come to rely on probationers, probation officers.

As such, they certainly execute a significant and important governmental function, in my view far expanding in many respects that of a police officer in Foley and a teacher in Ambach.

I would like to reserve my remaining time.

Chief Justice Burger: Very well.

Ms. Burdick.

ORAL ARGUMENT OF MARY S. BURDICK, ESQ., ON BEHALF OF THE APPELLEES

Mr. Burdick: Mr. Chief Justice, and may it please the Court, the state of California by enactment of one simple single section of California law, Government Code Section 1031(A), in one fell swoop has banned over one and one-third million legally admitted resident aliens of California from employment in more than 70 different job categories, regardless of whether those aliens are seeking to become citizens.

The jobs from which aliens are excluded include deputy probation officers, the positions which the plaintiffs in this case sought, as well as such jobs as inspectors for specialized boards, such as the boards of dental examiners--

Unidentified Justice: Are we really concerned with anything except probation officers here?

Mr. Burdick: --Yes, I believe we are.

The probation officers were prevented from obtaining employment by a statute which sweeps too broadly and which does not comply with the mandate of Sugarman that a statute which limits constitutional rights if challenged under the Fourteenth Amendment must be narrowly drawn and precisely crafted in light of the state's interest.

Unidentified Justice: I thought overbreadth was limited to freedom of speech.

Mr. Burdick: Well, not necessarily.

Of course, in Sugarman, the Court struck down the statute and said it was not precisely crafted and narrowly drawn.

Unidentified Justice: Well, I am probably a poor person to interpret Sugarman since I dissented in that case, but as I read it, it simply said that the state could have excluded certain jobs from aliens but that it simply swept with too broad a brush substantively rather than having conduct which might have been proscribed get off free because you couldn't tell what it meant.

Mr. Burdick: Well, I don't think that Sugarman indicated that the Court was unable to decide which job classifications were limited to citizens.

The Court said that, and gave examples of jobs that the jobs were too many and that the statutes swept too broadly, and therefore was not precisely crafted, and that is exactly what we have here, a statute--

Unidentified Justice: But, Ms. Burdick, if we agreed that as applied to deputy probation officers the statute was unconstitutional, do we have to go on and deal with the overbreadth issue at all?

Mr. Burdick: --You would not have to in order to resolve the case of the three plaintiffs.

However, this Court would be using a prudential limit on standing, not a strict standing requirement to do so, and that would lead to the very unprudential result which the county has urged that we have 69 more cases to decide about the rest of the statute.

Now, if we were suggesting that none of the positions in this statute could ever be limited to citizens, then I would agree that this is an incorrect vehicle.

Unidentified Justice: This isn't a class action, is it?

Mr. Burdick: No, it is not.

Unidentified Justice: Well, are you suggesting that it is time this Court fishes or cuts bait on the question of whether or not alienage may be required, or may be prohibited by a state in state employment, that it come to rest somewhere or other rather than deciding each case on an ad hoc basis?

Mr. Burdick: Well, the Court has clearly indicated that in some job positions aliens may be excluded, but I think, yes, this is a case where there is an opportunity to draw the line, and to establish some criteria so that the cases do not have to be resolved one at a time without any standards.

Unidentified Justice: Do you think Judge Hill tried very hard to follow the Ambach and the Foley cases?

Mr. Burdick: Well, as the court noted below, Judge Hill and the other two judges on the panel had been California state trial judges.

They were familiar with what probation officer does.

They said in their opinion that they considered Foley, they considered Ambach.

I have to believe that they did so.

Unidentified Justice: And they divided two to one.

Mr. Burdick: They divided two to one.

That is correct.

Unidentified Justice: Ms. Burdick, going back to Justice White's inquiry, was there a reason why this wasn't brought as a class action?

Mr. Burdick: What is reflected in the record is that a first amended complaint was proposed to make this a class action.

What is not reflected in the record is that the Court urged the parties to stipulate that it did not have to be a class action because the Court believed it could reach the overbreadth issue.

There is then a stipulation in the record that the parties would drop the class allegations from the complaint and would proceed with the action.

However, the county did agree to apply the decision to all probation officers, deputy probation officers in the stipulation, whether they were named plaintiffs or not.

Unidentified Justice: We couldn't decide this as a class action, could we?

Mr. Burdick: Pardon?

Unidentified Justice: We could not decide this case as a class action, could we?

Of course not, because it is not here.

Mr. Burdick: No, this is not a class action, and I am not purporting to--

Unidentified Justice: Well, if we can't decide this single class, how can we decide the whole class you want us to decide?

Mr. Burdick: --Well, I am not asking the Court to decide that no one, no member of what could have been a class could ever be required to become a citizen to get any of the jobs here.

All we are asking the Court to say is that this statute is not precisely crafted as applied to anyone.

That still leaves the legislature in the position of being able to go back and do what it could have done before, and that is examine each peace officer position and require citizenship for those where it feels it is appropriate.

Unidentified Justice: Maybe this is what Justice White already asked, but whatever reason the legislature had for requiring citizenship for probation officers must also apply to everybody else thrown into this statute, such as cemetery sextons and the like.

They didn't say, well, there is a special... they didn't separate this, probation officers, out from the others, and whatever the reason was must be common to the entire group covered by the statute.

Is that your argument?

Mr. Burdick: That is correct.

When the California attorney general a decade ago examined this statute, he opined that it was unconstitutional, examined the legislative history, and said he could find no reason for a broad sweeping citizenship requirement.

The citizenship requirement is not contained in a statute which says, probation officers must be citizens, and a separate one that says investigators for the board of dental quality assurance must be citizens.

What we had was one statute enacted that said peace officers must be citizens.

The definition of peace officer is contained scattered throughout other parts of California law, has evolved over the years, and there has never been any attempt to attach a citizenship requirement individually to the job categories.

The legislature acted with a broad brush.

Unidentified Justice: And yet you concede, do you not, that you represent only three people here and each of them are applicants for the position of probation officer.

Mr. Burdick: Yes, that's correct.

Unidentified Justice: The Attorney General's opinion was way back in 1970, wasn't it?

Mr. Burdick: Yes, it was.

Unidentified Justice: That would be before Foley and Norwick, Ambach.

Mr. Burdick: That's correct.

The Attorney General of California anticipated Sugarman, Foley, and Ambach, in his opinion, indicated that under current law even before those decisions the statute violated the Fourteenth Amendment, but even after the Attorney General's opinion and this Court's decisions, at least the county of Los Angeles in California has continued to enforce the statute.

Unidentified Justice: Has the Attorney General appeared in this litigation at all?

Mr. Burdick: No.

Unidentified Justice: And yet it is his duty to defend the statute under California law, or not?

Is that to be imposed on the county officials?

Mr. Burdick: The only obligation that I know of to involve the Attorney General is under this Court's rules to send him the required notice of the case.

He does not have any obligation that I know of under California law to appear.

This case offers an excellent opportunity for the Court to set some criteria and develop a way to draw lines in future cases where public employees are excluded if they are not citizens.

I offer and suggest three criteria which may help give some meaning to the language of Sugarman, Foley, and Connelie.

This language... these criteria can be used to evaluate jobs that are policy implementation jobs, non-elective, non-appointive, and I believe that these will give some substance to the language of this Court's opinions that require that the public be substantially affected by jobs which are limited to citizens, and that those jobs lie at the heart of representative government.

My first suggestion is that we inquire whether public employees have an important public power which puts them in a position of authority and control over a substantial portion of the citizen population.

My second suggested criteria is that we ask if there is any way in which the citizen government buffers the contact between the population in general and the public employee, either by screening the clientele of the public employee or by interposing some direct supervisor.

Unidentified Justice: On your first criteria, Ms. Burdick, do you mean all the people of California, all the people of Los Angeles County, or all the persons criminally convicted in Los Angeles County?

What is your constituency that you have in mind for that first criteria?

Mr. Burdick: The constituency of the probation officer in California is that portion of the population which has been arrested by the police--

Unidentified Justice: I want to know what constituency you were talking about when you mentioned your first criteria.

Mr. Burdick: --Well, I would say that a job which met the first criteria would require that all of... substantially all or a significant portion of the population within the jurisdiction of the public employee, the geographical jurisdiction, be subject to authority and control.

For example--

Unidentified Justice: Probation officers don't deal with the populace generally, do they?

Mr. Burdick: --No, exactly.

That is my point.

I don't believe probation officers meet this first criteria.

Unidentified Justice: Their constituency is primarily the convicted defendant, is it not?

Mr. Burdick: That's correct.

Unidentified Justice: Now, their contacts with other people are to acquire information about those convicted defendants.

Is that so?

Mr. Burdick: That's correct.

Unidentified Justice: Did I correctly understand Mr. Stewart to say they have 2,500 probation officers?

Mr. Burdick: I have no information and there is no information in the record as to the total number of probation officers.

On that first criteria, as you pointed out, the probation officer deals with a very small population.

The amicus Service Employees Union has offered data which can be found at their Footnote 4 and 11 and the accompanying text that indicates that one-tenth of 1 percent of the California population comes under the jurisdiction of a probation officer.

My second suggested criteria was whether there was a buffer between the public and the public employee.

My third suggestion is that we ask if the public employee holds a position which has some symbolic importance in the public mind in terms of what the public would perceive as the meaning of the power and authority of the government to control and to assimilate the general population.

If we apply these criteria to the probation officer functions, I think we will see that there is a distinct difference between a probation officer on the one hand and public employees such as police officers and teachers on the other.

Unidentified Justice: But when you speak of the public, certainly the public speaks through the legislature, does it not?

Mr. Burdick: Yes, and it is the legislature which I would suggest is the entity which is properly limited to citizens.

It is the legislature which would control the authority of the court, the court which in turn would control the authority of the probation officer.

The probation officer is very much screened out from the political process by the time a small portion of the population comes under his control.

Unidentified Justice: But when the legislature says that a probation officer must be a citizen, doesn't that mean that the public perceives that the probation officer ought to be a citizen?

Mr. Burdick: I don't know if that is true.

In this case, the legislature said all peace officers shall be citizens.

What they had in mind at the time they enacted that statute as to what a peace officer might be, I don't know, but if it is true that there has been a reasoned legislative decision here, then there has been a reasoned legislative decision that messengers have to be citizens, too, and I think at some point the Court has to go behind that decision to see whether it violates the Fourteenth Amendment.

Unidentified Justice: Well, we don't ordinarily require that all state legislative or for that matter Congressional decisions be "reasoned", do we?

Mr. Burdick: No, but when there is a challenge under the Fourteenth Amendment, particularly when a discrete and insular minority such as aliens is involved, this Court has required that there be a compelling justification for the classification.

If I may apply my criteria to the jobs performed by a probation officer, I think we will see the distinction between a probation officer on one hand and a teacher or a policeman on the other.

Probation officers, the court found, act as advisors to the court by preparing pre-sentence and probation reports for juveniles and adults.

The content of that report is factual, and the statute states exactly what is to be included.

Therefore, there is very little discretion in assembling the factual material in the probation report.

The probation officer, of course, does make a recommendation as to probation, but in California only the judge can set probation, set the terms and conditions, revoke probation, or modify it.

In court, the probation officer does act as an advisor to juveniles who do not have legal counsel.

However, in this capacity, they become less and less like decision-makers and more like legal counsel, which this Court, of course, has held in In re Griffiths may not be limited to citizens.

In their supervisory capacity, probation officers meet and counsel the population under their control, which I have indicated is very small.

The documents relied on by the Appellants to support their argument that probation officers perform an important function indicate that on the average a probation officer can meet with a probationer less than once a month.

Therefore--

Unidentified Justice: Would you concede that citizenship might be made a requirement by the legislature for judges?

Mr. Burdick: --In California there is such a requirement, and the criteria that I have offered are for non-appointive, non-elective positions.

I am not sure they would be generally applicable.

But it would be a very difficult case to argue that judges could not be required to be citizens.

Unidentified Justice: Ms. Burdick, just out of curiosity, is the prosecutor in Los Angeles County required to be a citizen?

Mr. Burdick: I don't know.

Mr. Stewart tells me he is.

Unidentified Justice: He does have to be.

Ms. Burdick, could I... suppose this statute that is here in Section 1 said all school teachers must be citizens, and Section 2, all policemen must be citizens, Section 3, all other peace officers must be citizens, and then the definition of police officer is just as it is in this case, and suppose your clients were either applicants for police positions or as teachers.

Mr. Burdick: If you--

Unidentified Justice: Do you think you would be here making the same argument, that because the statute is so broad, it may not be applied to teachers or police officers?

Mr. Burdick: --I think if there were a statute that said police--

Unidentified Justice: Well, this is the very statute here.

The only difference is that the first two sections apply to teachers and police officers, and your clients are some of those people.

Mr. Burdick: --I believe that I would have standing to raise that issue.

However, for prudential reasons, the Court might find that I would not have enough of a stake in the case and would not be raising it in the proper context, that it would be an inappropriate case to decide the full breadth.

Unidentified Justice: Well, what if we decide that probation officers are more like police officers?

And that if the only section there was in the statute dealt with probation officers, you would lose.

Do you think you should win because the statute applies to some other positions?

Mr. Burdick: I think in this case, yes, we should be able to prevail as the three-judge court below found on the issue that this statute was not carefully crafted by the legislature in light of the legislature's legitimate interest in protecting the political community.

That would still leave the California legislature free to go back and enact a narrow statute which applied only to the categories this Court found appropriately limited to citizens.

Unidentified Justice: Supposing the legislature did go back and craft, as you say, a narrowly drawn statute that said all probation officers must be citizens.

Would you feel that was constitutional or unconstitutional?

Mr. Burdick: That would be unconstitutional, because I do not believe that probation officers properly fall within the political community and are similar to police officers and teachers.

I believe the probation officer performs more one of the common occupations.

Unidentified Justice: Well, so then you really don't need the overbreadth argument at all, do you?

Mr. Burdick: No.

As I indicated, we could win if this Court only ruled that probation officers cannot be required to be citizens.

However, it would then be in the posture that perhaps 69 more cases would be necessary to reach the point that the District Court, the three-judge court had already met, and that was that the statute is overbroad, and a citizenship requirement, if enacted, will have to be done so narrowly.

Unidentified Justice: And therefore probation officers would be different from police officers and teachers.

Mr. Burdick: Yes.

Unidentified Justice: Ms. Burdick, do you think the Court should consider a federal pre-emption standard in looking at these cases?

Mr. Burdick: I know that it has been argued in earlier cases that federal immigration law and federal power pre-empts the state imposition of any citizenship requirements.

Although that issue is not directly addressed in Foley and Ambach, because of the existence in Foley and Ambach, we have chosen not to pursue that claim here.

Unidentified Justice: Ms. Burdick, let me ask you one thing.

Mr. Burdick: Yes.

Unidentified Justice: Is there a distinction in the facts, however relevant it may or may not be, between this case and Ambach in that your people were willing to take a loyalty oath and those in Ambach did not go that far?

Mr. Burdick: I had thought that the plaintiffs in both Foley and Ambach had indicated their willingness to sign the pre-employment loyalty oath.

Unidentified Justice: But in any event, yours are willing?

Mr. Burdick: Ours are all willing, and Mr. Chavez-Salido, in fact, had his petition for naturalization pending when he applied for employment and was still denied employment.

If I apply the criteria that I have suggested to the Job of probation officer, I would note that a probation officer does not perform important functions which put him in a position of power and authority over a substantial portion of the population.

As I noted, they deal with approximately one-tenth of 1 percent of the population.

They have control of that percentage of the population only during the period of probation, and their contact during that period is intermittent.

Unidentified Justice: How did you arrive at that one-tenth of 1 percent?

I missed your calculation.

Mr. Burdick: The figures came from the--

Unidentified Justice: Population of Los Angeles County?

Are you starting with that?

Mr. Burdick: --I took... the figures are from Footnotes 4 and 11 of the amicus brief of the Service Employees Union, and the figure was 23 million Californians and 23,000 probationers.

Unidentified Justice: Does the record show the total number of persons in confinement in California then?

Mr. Burdick: No, it does not.

If we compare then the police officer and the teacher, we see that a police officer has authority and power to intervene in the life of any citizen during the entire life of that citizen.

A teacher has power and authority over substantially all citizens for at least ten to twelve years of their lives, and for substantial periods of time during those ten to twelve years.

Unidentified Justice: Well, that is not true of a student at a private school, nor is it true of a police officer if he makes a warrant, unjustified, warrantless arrest, is it?

Mr. Burdick: I can see that public school teachers deal with probably 85 to 90 percent of the population.

I consider that a substantial enough proportion to meet my first criteria.

It is also true, of course, that a policeman can only intervene with one person at a time, and that his decision to do so may eventually be found to have been in error.

However, the policeman has the authority to make the decision on the spot in his own discretion whether to intervene with any citizen at any time.

The supervision and the oversight of that decision comes afterwards, and then it is by the court.

Unidentified Justice: Well, don't you think that supervision and oversight also comes from his lieutenant and his captain?

Mr. Burdick: Yes, it does, but at the moment of intervention, the police have the exercise of their own personal understanding of their job and their obligation as their only guidance.

There is no direct supervisor walking with the policeman on a beat.

Unidentified Justice: Well, how about the probation officer who decides to suspend probation or to hold the first of the Morrissey versus Brewer hearings?

Doesn't he have the initial right to make a determination that there is grounds for holding the second type of hearing on his own?

Mr. Burdick: In California, a probation officer cannot alter or revoke, make any changes in probation at all.

He can merely bring the issue before the judge, where the judge makes that decision.

Unidentified Justice: But he has the right to institute the proceeding, doesn't he?

Mr. Burdick: Yes, he can suggest to the court that a change should be made, but only the court can make that change.

Therefore, again, he acts as an advisor, bringing issues to the court, but not as the ultimate decision maker.

My second criteria was that we look to see if there is some buffer between the general population and the public official, either by the intervention of a supervisor or by screening of the clientele of the public officer.

It is the police, the judges, and the juries who winnow out the general population and find that narrow group which should be under the control of a probation officer.

I would suggest that it is then the police, the judges, and the juries who exercise the role of government in the criminal justice system, and that they simply pass on to the probation officer a very small class of people in need of limited supervision under set terms and conditions for a short period of time.

On the other hand, as I have already suggested, the police come in direct contact with the general public, and teachers come in direct contact with all of the general public.

There is no intervention, and there is no supervisor.

My third criteria was that there be some symbolic importance in the job in order to give meaning to the context of what we believe lies at the heart of our representative government.

Police and school teachers are constant, pervasive symbols of what it means to be under the control and authority and the assimilative forces of our society.

A probation officer is an important employee, but he is not a symbolic functionary of government.

Unidentified Justice: Isn't a probation officer an arm of the sentencing judge in California?

Mr. Burdick: Well, he is an advisor to and is present in court, but I don't think that he rises to the same importance in terms of symbolism as the judge or the jury.

Unidentified Justice: What do you think the probationer or parolee thinks when the probation officer comes around to have a chat with him?

Does he think that had something to do with the Judge?

Mr. Burdick: He certainly understands that the probation officer is following the instructions of the judge, but I don't think that he has the same reaction to the probation officer who is an employee in an office that he would have to the armed police officer or to the judge behind the bench.

Unidentified Justice: Are the probation officers in California permitted to carry arms under some circumstances by administrative leave?

Mr. Burdick: Only if their employing authority authorizes it, and to the best of my knowledge, and as far as the record reflects, no such authorization has been given in Los Angeles.

Unidentified Justice: Ms. Burdick, do they wear uniforms?

Mr. Burdick: I believe they do not.

In short, a probation officer, like a teacher or a policeman, is an advisor, not a decision-maker.

He deals with a very small, carefully screened portion of the population for a short period of time.

The three-judge court below comprised of former California state trial judges with firsthand knowledge of the operation of the probation system twice concluded based on the evidence presented to them that probation officers do not perform functions that fall within the heart of a representative government.

Unidentified Justice: Ms. Burdick, let me ask you one other question.

Does the record tell us how these people are appointed?

I know there is an examination of some kind.

Who is the appointing authority?

Mr. Burdick: I don't know what the appointing authority is, or whether they are simply employees of the probation department.

Unidentified Justice: And who runs the probation department?

Is that an elected office?

I am just wondering if they are possibly patronage people.

Mr. Burdick: I have no information that they are patronage people, no.

They have a competitive examination.

If there are no further questions.

Chief Justice Burger: Mr. Stewart?

ORAL ARGUMENT OF WILLIAM F. STEWART, ESQ., ON BEHALF OF THE APPELLANT -- REBUTTAL

Mr. Stewart: Mr. Chief Justice--

Unidentified Justice: Could you answer my last question?

You probably know.

How are they appointed?

Mr. Stewart: --Yes.

They are appointed by competitive examination.

They are not patronage.

Unidentified Justice: A competitive examination, and strictly on merit?

It is part of the civil service--

Mr. Stewart: That is correct.

Unidentified Justice: --Yes, but who appoints them?

The judge?

The state's attorney?

Doesn't somebody appoint them?

Mr. Stewart: Appoint the individual probation officers?

Unidentified Justice: Yes, sir.

Mr. Stewart: Yes, they are appointed by the chief probation officer, and based upon a competitive civil service list.

I agree with the Appellees that some lines should be drawn, but I believe that the lines drawn by the Appellees are too narrow and inappropriate for this particular job function.

Probation officers advise their juveniles of constitutional rights.

Moreover, if they act as legal advisors to juveniles, they act as a public legal advisor, in a sense, and this Court, while it held that citizenship could not be required of private attorneys, the Court has not had the opportunity to consider whether or not citizenship could be required of public counsel.

Now, judges and prosecutors also have somewhat limited contact, yet as an integral part of the criminal justice system, of which he probation officer is a part, they can legitimately be required to be citizens.

I believe that the Appellees have failed to articulate any viable reason as to why probation officers should be excluded from that team of judge, prosecutor, and police officer, and could not be limited to citizens.

Unidentified Justice: Incidentally, Mr. Stewart, I know it is not germane, but do you know whether there is any constitutional or statutory provision that requires a member of this Court to be an American citizen?

Mr. Stewart: I don't know, Your Honor.

Unidentified Justice: Or even a lawyer?

I don't think you will find it.

Well, perhaps the question is, could Congress pass a statute requiring members of the federal judiciary to be citizens of the United States?

Mr. Stewart: I believe they could, Your Honor.

I believe they could, and I believe California could pass a statute that requires their police officers and their probation officers and their judges and their prosecutors to be citizens as well, because I think the standard here is too narrow that they have articulated, but it is whether or not the individual has been given or cloaked with some aspect of the sovereign power of the state.

This Court has said that the states should be given broad power to structure their political community, and I think probation officers clearly fall within that political community.

They exercise a sovereign--

Unidentified Justice: But isn't it true that everybody who works for the government exercises some of the government's sovereign power?

Mr. Stewart: --I don't believe so, Your Honor.

There are jobs that are government employment, but there are other jobs, and we make this distinction in municipal law between a governmental officer who exercises a sovereign power--

Unidentified Justice: You would differentiate between the governmental functions and the proprietary functions, is your basic distinction.

Mr. Stewart: --Yes, between the type of employment such as a clerk typist or an engineer or an accountant who may work with the government or he may work outside the government.

When you are dealing with--

Unidentified Justice: How about an accountant for the probation department?

Mr. Stewart: --Pardon me?

Unidentified Justice: How about an accountant for the probation department?

Mr. Stewart: I don't believe that he could be restricted to be a citizen.

Unidentified Justice: Is there a requirement that members of your staff have to be citizens?

Mr. Stewart: Yes, there is, Your Honor.

There is a requirement that--

Unidentified Justice: Statutory, county?

Mr. Stewart: --A statutory requirement that county--

Unidentified Justice: I have yet to run across a bureaucrat of the federal or state government who wasn't the very epitome of all authority in government.

Have you?

Mr. Stewart: --Well, I would like to be a little more modest than that, Your Honor.

We do draw a distinction, though, in civil law between a governmental employee and one who is a governmental officer in the sense of possessing and exercising sovereign powers, and here, the state of California has conditioned a grant of some of their sovereign powers upon citizenship, in a bond that is simply an oath will not suffice.

If an oath would suffice, then why even require citizenship?

You have done away with the requirement of citizenship if someone merely can give an oath to uphold the Constitution or to obey the law in lieu of citizenship.

Unidentified Justice: Mr. Stewart, some time ago Justice O'Connor asked you kind of a double question, and I think you didn't get back to the first one.

Are you persuaded at all by this theory of pre-emption that some of the academics have advanced in this area?

Mr. Stewart: No, I do not, because that same point could have been made in Foley and Ambach, and the Court was not concerned about pre-emption in those two cases, and I think by virtue of the Court's--

Unidentified Justice: Did you say the point was made or could have been made?

Mr. Stewart: --Well, I don't believe that the decision in Ambach or Foley or Sugarman turned on federal pre-emption.

The Court, when it articulated the standards that the states had broad power to define their political community and applied that then to the context of Foley and AmDach, did not say that they were pre-empted from that in terms of citizenship because of the federal jurisdiction.

Unidentified Justice: No, but I think the point of the professorial comments is that this is the way out of this wilderness, and line drawing, and the like, to adopt a theory of pre-emption.

You wouldn't like that, of course.

Mr. Stewart: No, Your Honor.

I would recommend that we look more at the exercise of the sovereign powers as a way to draw the line rather than just simply take away completely the state's power to require citizenship.

Unidentified Justice: Thank you, counsel.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Ambach v. Norwick - Oral Argument

Sun, 20 Jun 2010 20:43:11 +0000

Case:

Ambach v. Norwick

Media File:

76-808_19790110-argument.mp3

Related Transcript:

76-808_19790110-argument.xml

Transcript:

Argument of Judith A. Gordon

Chief Justice Warren E. Burger: The case is submitted.

We'll hear arguments next in Ambach against Norwick.

Mrs. Gordon, you may proceed whenever you're ready.

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

The principal question presented on this appeal is whether the Equal Protection Clause requires New York to stop qualifying permanent public school teachers in terms of citizenship or application for citizenship.

This New York requirement is statutory.

It is codified in Education Law Section 3001 (3).

It operates only with respect to elementary and public school teachers and it asked for applications for citizenship only from immigrant aliens who have the legal capacity to accept or reject the request.

Other provisions of what appellants believed is a Finally Home State Program permit aliens to receive temporary certificates in certain circumstances.

For example, if an alien is going to federal disabilities and for that reason cannot acquire citizenship, he can receive a temporary certificate during the duration of those disabilities up for up to five years.

If, as another example, an alien is an exchange teacher teaching in New York public schools as an example of his own national culture, he also obtains a temporary certificate for up to two years.

The undisputed facts of this case placed the appellees at the core of the statutory requirement for citizenship or application for citizenship.

Mrs. Norwick has been a permanent resident alien in the United States for 14 years.

Mrs. Dachinger has been a permanent resident alien in the United States for 13 years.

During the entirety of that period and by force of their legal status, they had the capacity to acquire citizenship.

Both of these individuals, both appellees and there is no class action order in this case.

Both appellees sought under state law what are called N through 9 Certificates, the certificates that -- pardon me, N through 6 Certificates.

The certificates that permitted teacher to teach every, each and every grade from nursery through sixth grade and in the circumstances where the classroom teacher is responsible for teaching all of the subject matter within those grades.

This law --

Unknown Speaker: Do the -- does the state concede that these people except for alienage are further qualified?

Mr. Gordon: Yes, Your Honor with the caveat in the record which I should perhaps call to your attention and that is, in addition to the appropriate citizenship requirements, there are other grounds for obtaining provisional as distinguished from permanent certificates.

Mrs. Norwick at the outset of the case was denied, not the outset of this case, pardon me.

The outset of her application to the state authorities was denied even a temporary certificate -- pardon me, a permanent certificate because she had not completed the educational requirements for that certificate namely a Master's Degree, that aspect of the case was cured during its pendency below because she did in fact at the Master's Certificate.

So she would be qualified under state law except for the failure to comply with Education Law 3001 (3).

Unknown Speaker: One other question and I'll let you go.In the appendix on page 25, is the statement under Rule 9 (g).

Mr. Gordon: That is correct.

Unknown Speaker: Do the appellants accept that as true and correct?

Mr. Gordon: Yes, Your Honor.

If we have accepted that this is true but if the implication of your question is that in accepting that statement, the offer of proof which is set forth at page 303 of the appendix following was inappropriate then we would dispute that.

Appellants contend that Section 3001 (3) must be sustained under the Equal Protection Clause regardless of whether the statute is subjected to relax or to strict scrutiny.

The statute serves the state's substantial purpose in training citizens for -- pardon me, in training pupils for their responsibilities as citizens.

It does so by the most effective and least drastic means available.

It includes those who are willing to accept the responsibilities they must impart, namely, individual participation and democratic decision-making and it excludes only those individuals who have refused to participate and who have by that very choice placed themselves at odds with the instructional purpose that the statute carries out.

Appellees do not refute the proposition that public education in fact trains pupils for citizenship.

They also do not refute the additional proposition that public education through this training has been a force for social cohesion in the United States, forging as it were, one nation out of the various immigrants who settled this country and who continued to come here today.

Indeed, we do not think that appellees could successfully refute that proposition and faces this Court's off repeated statements that the principal purpose if not the overriding purpose of public education is in fact training for citizenship.

Given this --

Unknown Speaker: They are authorized to serve on the school boards at higher teaching?

Mr. Gordon: Yes, Your Honor.

Well, not exactly Your Honor.

Appellees point out as an example of inconsistency with the statutory program here involved that in New York City, and in New York City only, aliens have been entitled to vote in so-called community school board elections and to seat as members of those community school boards.

There are essentially 32 of those school boards.

This entire program was first enacted in 1969 and is an educational experiment which is as we showed in appendix, in exhibit A of our reply brief; again, before the legislature in terms of consideration of the validity or success of the experiment.

Now, in voting in that kind of an election and on seating on a school board, the alien who votes or seats does nothing inconsistent with this statutory program because 3001 is the overriding or supervening state statute which classifies all elementary and public school teachers in New York State and with respect to which that alien member of the school board can do nothing.

He does not have the discretion to change or affect the role model example of the teacher in the classroom as member of that board.

Unknown Speaker: Another question.

Has New York ever attempted to impose his requirement on teachers in private schools?

Mr. Gordon: No, Your Honor.

Unknown Speaker: Is there any reason for that?

Mr. Gordon: I think so Your Honor.

I think in fact the choices constitutionally compelled.

The fact that New York views as this Court has viewed, public education as the agency or primary agency through which citizenship is developed does not mean by any stretch of the imagination that private schools do or should serve the same interest.

In fact, private schools are acknowledged to be in having opinions of this Court been acknowledged to serve quite different interest largely religious interests and they operate in the context where those interests are become paramount to other interests it serves.

Indeed, for example in New York City, we have private schools that operate along the lines of national interest.

The le ce francais, which teaches a curriculum entirely in French leading through a French Baccalaureate degree in preparation for European or accept a further education European universities or pass in American universities.

Unknown Speaker: What about other Hunter, Dalton, and places like that?

Mr. Gordon: I beg your pardon, Your Honor?

Unknown Speaker: What about Dalton and Hunter?

Mr. Gordon: Well Hunter is a public --

Unknown Speaker: (Voice Overlap) private schools not denomination of school, and there are quite a few in New York.

Mr. Gordon: Well I think that's to put aside the example of Hunter Your Honor because that's a public school.

But in terms of Dalton or Brearley or the other private schools in New York, New York has left the state that is.

Has left to the parental --

Unknown Speaker: No, I mean you can't say church school --

Mr. Gordon: Well, in fact Your Honor 588,000 children or so in New York State attend private schools.

Only 64,000 of those children attend schools of the type that -- the Dalton type, all the rest attend religiously identified schools were indeed the teachers may be members of religious, international religious --

Unknown Speaker: All I'm asking is to include it in --

Mr. Gordon: Yes, that's true Your Honor.

We do not limit the qualifications of private school teachers whether for religious schools or for other private school for other types of private schools to citizens or applicants for citizenship.

Unknown Speaker: But Mrs. Gordon is it not true that the private schools both religious and secular have as part of their mission training of the pupils for citizenship and in fact doesn't the state require certain course content in order to fulfill that objective?

Mr. Gordon: I think the response must be frank in the following way, Your Honor.

It is public education that has been accorded, the principal responsibility of training for citizenship.

Public education in New York is a matter of state constitutional prerogative and protection.

Private school is not.

But of course, the state has an interest in the kind of curriculum and the kind of instructions in that -- in those private schools.

And the state does by statute which we cite in our opening brief require that the instruction in those schools be substantially equivalent.

I call to your attention, it does not require it to be the same and there is no suggestion in the statutory plan that the quality of instruction for the purpose of training for citizenship is the same.

The curriculum requirements, the basic curriculum requirements, the 12 common branches in elementary school and some additional courses and secondary school are generally required under the substantial equivalent formula in both public and private schools.

Courses in history are included in both public and private schools.

However, in terms of curriculum the state does speak differently to its own public schools.

For example, it requires in public schools but not private schools --

Unknown Speaker: But even though they are different -- even though they are differences, is not the reason for the regulation of the private schools, the states interest and being sure that all children are properly trained for citizenship.

Isn't that the overriding objective in the recent -- for the regulation?

Mr. Gordon: Frankly, Your Honor, no I don't think so.

I think that the states predominant interest for public education is in fact training for citizenship.

I think as decisions --

Unknown Speaker: But why did they regulate private schools at all then?

Mr. Gordon: Because there is a fundamental interest in no -- for the state in seeing that certain standards of educational standards are met.

The children who go through a course should be able to read and write.

But that doesn't say that the agency that has looked to for this purpose is predominantly the private school.

It is in fact the public school and has the most significantly to the extent that the religious preferences of parents might be impeded by the same identical regulation of private schools then of course that would seem to me that the state has acknowledged that and has said that, “No, we will stop shoot of that.

We will let the parent who chooses a different kind of education for his child have the full benefit of the instruction that goes along with it and the states says that that is fine.

Only minimum curriculum standard should be met.”

Chief Justice Warren E. Burger: Mrs. Gordon, why do you think you need to assert the idea that private schools do not have as part of their mission the training for citizenship.

You don't have to defend the statute of New York on the ground that it's perfect or that it's perfectly consistent.

People would have the private school who wants private schools just as we have religious schools.

But as Justice Stevens suggested there are certain minimum requirements that are common to all of those?

Mr. Gordon: That is correct, Your Honor.

Chief Justice Warren E. Burger: There are no constitutional requirements that state statutes have to be internally consistent, is there?

Mr. Gordon: Well, Your Honor that brings us to the question in this case as to whether or not we would apply the rational basis test as sustain the statute that way under the Fourteenth Amendment or whether or not we would apply strict scrutiny.

The force of my argument here today is largely directed to strict scrutiny because of course if the statute survives that test, it must perforce survive the rational basis test and accordingly, I directed my answers in that vein.

But equally Your Honor, we have taken the position in our briefs which is by no means is true and that is that the appropriate test is one of reasonable relation and that is because training for citizenship as it has been an expressed as the responsibility of the public schools is an important governmental interest, a proposition which appellees don't dispute or refute, at least successfully as I read their papers.

And indeed the relationship between the teacher as the individual who is present in the classroom who is the model and example for the behavior or his students ties him closely and reasonably with the execution of that governmental purpose.

And on those two statements we think, Your Honor, frankly that the statute not only survives reasonable basis examination but also strict scrutiny examination.

Given the posture of the case, as we perceived it framed by the arguments offered by appellees that is that they do effectively concede Your Honor.

That training for citizenship is the primary mission of the public schools.

The question then becomes whether or not or the sole question that remains in the case is whether or not the selection of the positive rather than the negative example as that Section 3001 (3) provides is in fact reasonably or necessary related to the instructional purpose that the statute serves.

And I think it is important in this context to examine for a moment what the teaching and learning process is about.

Teachers do not merely teach by recitation from a text if they ever did so and students do not learn or wrote studies which again appellees do not seriously imposed speak to the point that teachers transmit attitudes and values as well as information by their own example.

That pupils under their control in jurisdiction copy and emulate those attitudes and those the very attitude that is transmitted to --

Unknown Speaker: What are some of the attitudes and values that the citizen has that the plaintiffs in this case do not have?

Mr. Gordon: The citizen has the capacity to participate in democratic decision-making.

That is the attitude and value that is sought to be transmitted.

Unknown Speaker: You mean he can vote?

He can vote?

Mr. Gordon: He can vote.

Unknown Speaker: Well, can't these people participate and debate I suppose which is part of democratic decision-making --

Mr. Gordon: I think that --

Unknown Speaker: The answer is to let aliens vote?

Mr. Gordon: Well, I don't think based on Skafte versus Rorex that that would be likely Your Honor.

Unknown Speaker: The state could do it.

Some states have.

Mr. Gordon: Some states have historically but not for a very long time in my understanding.

Unknown Speaker: Do you have any requirement in New York that your teachers must vote in order to hold their job?

Mr. Gordon: It's interesting forth, Your Honor.

I think if we had such a requirement, it would probably be in violation of the First Amendment because after all I think the concepts embodied there include the right to remain silent as well as the right to express oneself.

Justice William H. Rehnquist: If a teacher fulfills your requirement, the teacher could also be a policeman, isn't he?

Mr. Gordon: That's right and one of -- and the regard for the assumption of those kinds of public duties is the kind of attitude and value that is sought to be imparted and when we suggest that the value is democratic decision-making and also regard for public duty, we do not exclude bringing up children to assume the responsibilities of policeman, legislators and judges.

That is exactly what the force of public education is.

I think as I've in attempting to point out that it must be accepted and it has been accepted in prior decisions of this Court particularly Wisconsin versus Yoder most recently.

That in fact, teachers do import principles by their own example by these instructions from their example of values and attitudes.

I don't think that we can find that appellees even if they acted in the utmost good faith could be the kind of example that is consistent with the statute because essentially even if they said that they would select out those attitudes that they fought would be positive reinforcements of the citizenship training they are attempting to provide they could not effectively do so because no individual can consciously select those attitudes and values which they will convey.

Teachers convey the body of their attitudes all of the time and all of the courses that they teach.

Thank you, I will reserve a few minutes for rebuttal.

Argument of Bruce J. Ennis, Jr.

Chief Justice Warren E. Burger: Very well.

Mr. Ennis.

Mr. Bruce J. Ennis, Jr.: Mr. Chief Justice and may it please the Court.

Appellants' arguments here and in their briefs largely ignore the particular facts of this case, New York's unusual and even unique statutory scheme and the narrow and rather traditional legal theory that was the basis for the unanimous judgment below.

Many of the issues raised by appellants need not be resolved in order to affirm the judgment below.

For example, this Court could assume as did the Court below that New York might have a legitimate interest in preventing some aliens from teaching some subjects at some grade levels and nevertheless conclude as did the court below that this particular statute is not necessary to protect that interest and in impermissibly under and over inclusive.

The statute is under inclusive because it does not require citizenship or even declarant status for teachers in private schools who teach 18% of the elementary and secondary school population in New York State.

Under New York law, private school teachers are --

Chief Justice Warren E. Burger: Well isn't there a difference, we do not permit, the Constitution does not permit teaching religious subjects in the public schools but it fully protects the right to teach religious subjects in private school?

Mr. Bruce J. Ennis, Jr.: Yes, Your Honor.

The question here is --

Chief Justice Warren E. Burger: It seems to me it somewhat dissolves the point your making.

Mr. Bruce J. Ennis, Jr.: Well, I think not Your Honor for the following reason.

The question is not whether New York would be constitutionally required to require teachers and private schools to teach the principles of democracy or would be constitutionally preventive from doing so.

That is not at issue in this case.

The New York State legislature has chosen to require teachers in private schools to teach the principles of democracy which shows that the state has an interest whether it's a constitutional interest or not, is not an issue in this case but it shows that if the state has an interest in requiring private school teachers to teach the principles of democracy.

But if it is not necessary to ensure that private school students learn the principles of democracy to require that --

Chief Justice Warren E. Burger: Parents have a choice about sending their children.

Like the private schools, they have no choice about sending children to the public school with them under compulsory attendance laws.

Mr. Bruce J. Ennis, Jr.: Well, that's entirely correct Your Honor, but it is also true in New York that parents have no choice at the present time whether their private school students are taught the principles of democracy or not.

It is required by New York statute that private school students are taught those principles.

Our point here is simply that if citizenship or declarant status is not necessary to ensure that private school students learn those principles.

It is not necessary to ensure that public school students learn those principles.

Justice William H. Rehnquist: But isn't it possible that New York may have felt it was confirmed with conflicting claims with respect to private schools.

That is there are the desire for autonomy and let them run themselves but at the same time they have to fulfill some of the functions of public schools and so they chose to go just halfway with private schools prescribed the curriculum but not right heard on whom I teach?

Mr. Bruce J. Ennis, Jr.: Again, Your Honor, we're not saying in this case that New York is required by the Constitution to have exactly identical requirements for public school and private school teachers.

The point I'm simply making is that the New York State legislature has already by statute required that the principles of the democracy be taught by private school teachers.

The New York State legislature would clearly have the constitutional authority in my opinion if it shows to do so to require that private schools teachers meet the same minimum qualifications as do public school teachers and that would include the same citizenship or declarant statute requirements.

Justice William H. Rehnquist: Well, the point I was trying to make to you in my question was that New York could with equal constitutional validity decide to stop short with private schools of its going as far as there were public schools in saying that with public schools we are required both teaching democratic citizenship and citizen or declarant aliens status for teachers.

But with private schools, it will simply require the curriculum content and let the private schools choose the teachers themselves.

Mr. Bruce J. Ennis, Jr.: Your Honor, the point I'm trying to make is not that there is a separate and independent equal protection violation because of the different citizenship requirements for private school teachers and for public school teacher.

The point I'm simply making is that the state has already indicated it has an interest, a state interest in making sure that private school students learn the principles of democracy.

And the state apparently believes that it can fulfill that interest at least in the private schools without also requiring citizenship or declarant status for the private school teachers.

Justice William H. Rehnquist: But isn't that an equally rational inference that the state perhaps felt that private schools would not be quite a sure of fulfilling that interest but nonetheless in the interest of preserving autonomy of the private schools shows not to force them the way they chose to force the public schools?

Mr. Bruce J. Ennis, Jr.: Well, Your Honor that's entirely a matter of speculation.

Justice William H. Rehnquist: Yes.

Mr. Bruce J. Ennis, Jr.: There's nothing in the record of this case or in the legislative history of either of those statutes that could properly answer your question on that point.

Justice William H. Rehnquist: I agree it's speculative.

Mr. Bruce J. Ennis, Jr.: I think that entirely apart from the private school point, this statue is also under inclusive because under a regulation issued by appellants, aliens who are barred by a federal statute from becoming citizens or even from filing declarations of intent to become citizens are nevertheless permitted in some circumstances to teach even in the public schools.

I think the statute is over inclusive because it applies to any alien from any country and prevents that alien from teaching any subject at any grade level.

It therefore applies to aliens such as appellees who are willing to take an oath to support the state and federal constitutions and who have actually taught the principles of democracy in New York's private schools.

It applies to aliens such as appellees who are married to United States citizens, who are the parents of United States citizens, who have resided here for well over a decade, and who even received their Graduate Education in New York Public Universities.

The statute applies to aliens from countries whose political traditions and values are indistinguishable if not much the same as our own for example, appellee Norwick was born in Scotland and is a citizen of Great Britain.

Even if we assume that the state does have an interest in preventing for example Russian citizens from teaching Civics.

Must it prevent French citizens from teaching French, or Canadian citizens from teaching Math or Metal Work in order to protect that interest?

Finally, despite appellants' erroneous claim that it was only dicta, a reading of Kay versus The Board of Education shows that the New York courts have squarely held that the citizenship requirement "is not limited to elementary and secondary schools and the court therefore holds that Bertrand Russell is not qualified to teach in City College by reason of the provisions of this Section."

Your Honor, one of the important -- Your Honors, one of the important questions in this case is the appropriate standard of review.

Now we believe that even under a rational basis standard, this statute is not necessary and would not survive.

For example, it cannot rationally be supposed that an alien who on the first day of residence in this country files a declaration of intention and is thereupon permitted to teach in New York Public Schools for five years will know more about this country's values and morals share those values and morals and be better able to teach them.

Chief Justice Warren E. Burger: Well you have read the argument for a perfectly tailored statute now, aren't you?

Mr. Bruce J. Ennis, Jr.: No, Your Honor.

Chief Justice Warren E. Burger: It's always easy to take any statute in any area under the scrutiny of litigated case, think about ways that it could be made more merely ideal.

Mr. Bruce J. Ennis, Jr.: That's correct Your Honor, we're not arguing for a perfect match here but I do believe that based on the factors identified in our brief that this particular statute is substantially and impermissibly under and over inclusive not just that there is a small difference but that there is a great difference, a difference of constitutional significance.

Unknown Speaker: You've use the word necessary to attain the state objective.

Do you really mean that?

That's the terminology of strict scrutiny.

Mr. Bruce J. Ennis, Jr.: Well, certainly that's the terminology of strict scrutiny.

Unknown Speaker: I thought you're arguing rational basis?

Mr. Bruce J. Ennis, Jr.: I'm arguing both Your Honor but let me turn to that point and say to the Court what I believe strict scrutiny is in fact the appropriate standard to be applied in this case.

Unknown Speaker: Well, I thought you just said even under the rational basis, you would think the statute is invalid.

Mr. Bruce J. Ennis, Jr.: I did say that Your Honor.

Unknown Speaker: But in that context, you use the word necessary without a slip of the tongue.

Mr. Bruce J. Ennis, Jr.: Well, actually not Your Honor.

Because the previous alien cases of this Court including for example Foley which was decided on a rational basis ground state in a footnote in Foley in the majority opinion that even if the state is legislating to define its political community, the statute cannot sweep indiscriminately that it must make careful choices.

And whether we choose the word necessary choices or over or under inclusive I think is not a particular appropriate.

When we're talking about aliens who have historically been a suspect class deprived of the right to vote politically powerless, I think that kind of scrutiny by this Court is warranted.

But let me turn to the point of why I think it's clear that strict scrutiny is in fact required in this case.

Very recently in Nyquist versus Mauclet, this Court ruled that statutes which limit the benefits to citizens or to declarant aliens must be strictly scrutinized.

Now that was a 5 to 4 decision but it has not been overruled --

Chief Justice Warren E. Burger: It is also higher education, was it not?

Mr. Bruce J. Ennis, Jr.: It was financial assistance for higher education, Your Honor.

Chief Justice Warren E. Burger: Graduate indeed, Graduate Education.

Mr. Bruce J. Ennis, Jr.: That's correct Your Honor and as I believe you pointed out in your opinion in that case, well that was a lesser interest of the plaintiffs involved than it would be the interest in this case which is a right to employment which you described in that case as a fundamental personal interest.

The interest in Foley was simply an additional benefit, financial assistance for graduate education whereas the interest in this case is actually the right to appointment.

Chief Justice Warren E. Burger: We haven't reverse I think in Mauclet and Foley.

Mr. Bruce J. Ennis, Jr.: I'm sorry, I was -- I'm sorry, I was talking about Mauclet, Your Honor.

At any rate, I think that Mauclet is indistinguishable on that point and therefore, unless this case falls within the political community exception for suggested in Sugarman and first applied in Foley, the strict scrutiny standard should apply.

I think that there are at least six reasons which distinguish this case from Foley but before discussing those specific reasons, I would like to make one point not made in our brief which I personally find dispositive.

We contend as the New York courts actually held in (Inaudible) that teachers have only very limited discretionary authority under subject to close supervision.

But whatever authority teachers have to formulate or execute broad policy, they certainly do not possess as much authority to formulate or execute policy and do not have as much continuing or overall impact on the political socialization of students as do their direct superiors the local community school boards who under New York statute have the authority to hire and fire and select teachers to specify the curriculum, to select textbooks and other instructional materials, and "to generally manage and operate the schools."

As appellant conceived the New York legislature has authorized non-declarant aliens to vote for and serve as members of those school boards.

And it seems to me that in New York at least, it is frivolous to argue that teachers exercise such broad policy making authority that they come within the political community exception --

Unknown Speaker: Mr. Ennis --

Mr. Bruce J. Ennis, Jr.: -- when the direct superiors do not.

Justice Lewis F. Powell: I interrupt you because what you said startles me when you suggest that a school board member who never goes into a classroom has as much authority with what a pupil is taught to think and what the value is that people may be as result to being taught by classroom teachers, is that your position?

Mr. Bruce J. Ennis, Jr.: Well Mr. Justice Powell, let me answer that question this way.

The studies that are cited in both of our briefs make it clear that social scientist do not yet know whether the role model of the teacher or the curriculum is the more important factor in political socialization.

But certainly the curriculum is --

Justice Thurgood Marshall: How many people is in New York City you think know a single member off the school board?

Mr. Bruce J. Ennis, Jr.: Your Honor, I don't think many students --

Justice Thurgood Marshall: Would you rather say, you don't think any except the sons and daughters of the members of the board?

Mr. Bruce J. Ennis, Jr.: Perhaps not any, Your Honor.

But let me say this --

Justice Thurgood Marshall: And what does that do to you?

Mr. Bruce J. Ennis, Jr.: I think it leaves it unimpaired for the following reason.

The school boards can actually select the teachers which are going to be the role models.

That's the first point.

Second, the school boards have an effect on the political socialization of children by deciding what they are going to read and the instruction materials they are going to use not only for one course or perhaps for one year as the teacher might but throughout their entire school career.

Chief Justice Warren E. Burger: Can you take away the discretion which all of New York has given to school boards and not to engage aliens?

Mr. Bruce J. Ennis, Jr.: No, Your Honor.

Chief Justice Warren E. Burger: Including citizens of the U.S.S.R. for example?

Mr. Bruce J. Ennis, Jr.: No, Your Honor.

I have no intention to take away that statutory authority that New York has --

Chief Justice Warren E. Burger: Then why are you here?

If you're not trying to take away the statutory authority as the three-judge court did.

Mr. Bruce J. Ennis, Jr.: Excuse me, Your Honor.

I thought you were talking about the statutory authority which permits aliens to be members of school boards.

Chief Justice Warren E. Burger: No, I'm talking of the statutory authority who picked the school teachers through a chain of command.

They don't pick them directly.

Mr. Bruce J. Ennis, Jr.: We're not quarrelling in this case with the discretionary judgments of school boards to pick teachers on one or another ground.

We're only quarrelling with the statutory provision which says that no school board whether in New York City or outside of New York City can select a teacher for public school who is not a citizen or declarant alien.

So we're not quarrelling here with the discretion of school boards except for the statutory provision which limits their discretion.

Unknown Speaker: Mr. Ennis.

Mr. Bruce J. Ennis, Jr.: Yes, Your Honor.

Unknown Speaker: I understand you are arguing that school board members have as much authority and influence over the pupil as teachers do, is that your argument?

Mr. Bruce J. Ennis, Jr.: I think Your Honor that it is difficult for the state to argue that teachers are so close to the core of the political community that they must come within the political community exception.

Unknown Speaker: You don't have -- are textbooks are selected in New York?

Mr. Bruce J. Ennis, Jr.: Pardon me, Your Honor?

Justice Lewis F. Powell: Do you know the process by which textbooks are selected in New York City?

Mr. Bruce J. Ennis, Jr.: Yes, Your Honor.

There are very minimum qualifications but as the state points out in their reply brief.

Basically, the curriculum is set by the community school boards themselves and the selection of textbooks.

Justice Lewis F. Powell: Actually, what happens is that committees of teachers select the books.

The school board ratifies those, all of them without ever having read any of them.

I've been there I know.

Mr. Bruce J. Ennis, Jr.: Mr. Justice Powell, I know of your experience --

Justice Thurgood Marshall: And that --

Mr. Bruce J. Ennis, Jr.: -- in the School Board of Virginia and I certainly not going to quarrel with you on how these things actually happen.

Justice Thurgood Marshall: You have to listen to the whole out of organizations objective to different book.

Mr. Bruce J. Ennis, Jr.: I guess that's correct too.

Let me say this that even if that point is not dispositive, I think there are at least six grounds why this case is readily distinguishable from Foley.

First the majority of Foley expressly reaffirmed at two points in the opinion, earlier cases requiring close scrutiny when aliens are excluded as in this case from "license to professions.”

Second, "the majority also stressed that the office of the policeman is in no sense one of the common occupations of the community.”

But teaching is the third most common occupation in New York State even more common done laborers and is apparently the largest category of public.

Chief Justice Warren E. Burger: Do you think commons has been used in these decisions in terms of the court, in terms of the head count?

Mr. Bruce J. Ennis, Jr.: Well, Your Honor the Court has never elaborated on exactly what it does mean by common occupations but that is certainly an important point.

At least four cases decided by this Court in the last five years have quoted that provision of Truax versus Raich which talk about common occupations and that was relied upon for example in Griffiths involving lawyers and the Court apparently thought that lawyers were a common occupation even though they are not as numerous as teachers.

Third, appellants do not dispute the New York Case Law and the opinions of the New York Attorney General which expressly hold that teaching is not a public office and that teachers are employees not officers and do not "exercise any sovereign power.”

In that connection, I think it's worth noting that the states brief in Foley stressed that state police were designated public officers not employees.

Fourth, the majority in Foley also stressed that "most states expressly confine the employment of police officers to citizens.”

But even a generous reading of exhibit C to the states reply brief shows that over three-fourths of the states do not require citizenship or even declarant status to teach in public schools in those states.

Fifth, alien --

Justice John Paul Stevens: In your point Mr. Ennis, doesn't your opponent make it clear that about a large number don't do so because they fear there is a constitutional problem?

Mr. Bruce J. Ennis, Jr.: Well, Your Honor I'd like to --

Justice John Paul Stevens: About 50-50 on the policy choice.

Mr. Bruce J. Ennis, Jr.: I would like to say two things about that.

First, it is of course entirely speculative why 10 states in the last few years have abandoned previous requirements of citizenship or declarant status.

We don't really know why.

But to the extent the state would be right about that that Attorney's General of those states concluded after reading this Court's decisions that citizenship cannot --

Justice John Paul Stevens: Reading all of them except Foley?

Mr. Bruce J. Ennis, Jr.: Pardon me?

Justice John Paul Stevens: Reading all of them except Foley?

Mr. Bruce J. Ennis, Jr.: But certainly knowing about the political community exception discussed in Sugarman and only later applied --

Justice John Paul Stevens: Yes, but not knowing it didn't include policeman or did include policeman.

That came, I think must have come as quite a surprise about a few of those states attorney general.

Mr. Bruce J. Ennis, Jr.: Well, Your Honor, I've argued a lot of cases against attorneys general but I would like to say that I don't think they can all be wrong all of the time.

And if the unanimous opinion --

If the unanimous opinion of all these attorneys generals is that this Court's previous decisions do not bring teachers within the political community exception discussed in Sugarman.

I think that itself is entitled to some weight in deciding what the law in this country is.

Fifth, --

Unknown Speaker: That's what the dissent in Foley thought to.

Mr. Bruce J. Ennis, Jr.: That's correct Your Honor.

Fifth, alien attorneys do not come within the political community exception to strict scrutiny and it follows a fortiori.

Unknown Speaker: Dissenting one of the concurrence if we might add.

Mr. Bruce J. Ennis, Jr.: And it follows that teachers do not because lawyers share more or the characteristics of police fought relevant in Foley than do teachers.

As this Court noted in, In re Primus "The interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice and have historically been officers of the court.”

And as this Court noted in Griffiths, like police, lawyers can invade individual privacy through issuance of subpoenas and compelled depositions indeed the Court noted that lawyers can even "command the assistance of police."

Finally, teaching is not a governmental monopoly.

All of the alien cases today in which this Court has not applied strict scrutiny or has ruled that citizenship is a permissible requirement involved governmental monopolies.

You cannot have private voting for state or federal officials or private jury trials, or private state police but you can't have --

Justice John Paul Stevens: But isn't teaching a public school a governmental monopoly?

Mr. Bruce J. Ennis, Jr.: Teaching per se Your Honor is not.

Justice John Paul Stevens: But the rule does not apply except in public schools to the extent that the rule applies it applies in the governmental monopoly.

Mr. Bruce J. Ennis, Jr.: I'm simply trying to suggest a distinction between all of the previous cases and this one which is based on the function of the job regardless of whether the state --

Justice William H. Rehnquist: How about private security police?

I mean, obviously, they're not state official but nonetheless they prefer the same functions as police, isn't that kind of analogous what Justice Stevens is talking about?

It is somewhat analogous, Your Honor.

Mr. Bruce J. Ennis, Jr.: You can define the question so that it comes out in your favor, but I do not know that it will help.

Justice William H. Rehnquist: Well, let me say this Your Honor

Mr. Bruce J. Ennis, Jr.: I don't know exactly where the political community exception established by this Court is going to lead in the future.

All I'm suggesting is that to date it is only been applied by this Court to cases involving pure governmental monopolies and I think that's an appropriate place to draw the line and not to extend it further than that.

Chief Justice Warren E. Burger: Do you think first statute does just that as Mr. Justice Stevens suggest it applies only to the governmental monopoly or the public schools of the limited category, public primary and not higher education?

Mr. Bruce J. Ennis, Jr.: Your Honor, the point I'm trying to make is that the Court should focused on the actual function involved.

Of course, we could have private security police but the function of teaching is not a governmental monopoly.

In fact this Court ruled in the Rodriguez case that teaching is not only not a governmental monopoly but is not even a fundamental right.

There is no constitutional right given to a public education.

Chief Justice Warren E. Burger: That doesn't change order the fact that it's a governmental monopoly to teach public schools, does it?

The fact that there's no enforceable right to have a public school if that's the case.

Mr. Bruce J. Ennis, Jr.: Your Honor, I think the critical point here is not whether the state has chosen to make its regulations applicable to both public and private schools.

It could make the application applicable to private schools.

The point is that the function of teaching has never been thought in this country to be a function that can be reserved only to the public sector and can be performed only by the private sector.

Previous decisions of this Court, Pierce versus Society of Sisters and others recognized that there is a private right to teach and to learn and that it is not a governmental monopoly.

Justice John Paul Stevens: Mr. Ennis, do you happen to know what percentage of the New York State budget is devoted to public education?

Mr. Bruce J. Ennis, Jr.: I do not know that Your Honor.

All I know on that point is that 18% of the students and elementary secondary schools are in private schools.

I do not know that --

Justice John Paul Stevens: In most states, education is a single largest item in the state budget that may not be true in New York in the view of the welfare law with.

Mr. Bruce J. Ennis, Jr.: I don't know the answer to that question Your Honor but I think it does raise a point that I begin with and that is New York statutory schemes are rather unique scheme including the statute which permits aliens to serve on school boards and I think the decision of this Court need not be any broader than the New York statutory scheme and would not have to apply necessarily to the teaching profession in other states.

I would like simply to make one other point.Appellants have stated under oath that they are -- appellees have stated under oath that they are willing to take an oath to support the state and federal constitutions.

Now if what we're concerned about is not functional reality about actual ties to this country based on period of residence, paying taxes marriage to U.S. citizens.

If what we're concerned about is a piece of paper, it seems to me that that oath is a more specific and also represents a more present commitment --

Justice Thurgood Marshall: Did he explain any place where they will not take an oath and support the guys to the United States but they don't want citizenship?

Mr. Bruce J. Ennis, Jr.: Your Honor, under New York statutory --

Justice Thurgood Marshall: Is there anything in the record --

Mr. Bruce J. Ennis, Jr.: There is nothing in the record.

Under the New York statutory scheme the reasons why a particular permanent resident alien decides not at a point in time to apply for citizenship are entirely immaterial and irrelevant.

Justice Thurgood Marshall: How does it measure what good don't this?

Mr. Bruce J. Ennis, Jr.: Well, let me say this Your Honor, the declaration of intention is merely a declaration that at some point in the future, the declarant intends to become a citizen.

The actual decoration intention says nothing in it at all not whether at the present time the declarant agrees with either state or federal constitutional principles.

Justice Thurgood Marshall: They don't need a (Inaudible)?

People don't want to sign that.

Mr. Bruce J. Ennis, Jr.: Decide which Your Honor?

Justice Thurgood Marshall: Why is it they don't sign that?

Mr. Bruce J. Ennis, Jr.: Your Honor, as I said there is nothing of that kind.

Justice Thurgood Marshall: Not that anything has to do with the case except if they did sign it, there would never be a lawsuit?

Mr. Bruce J. Ennis, Jr.: Well, I can say this in response to your question.

I am authorize to represent to the Court as we --

Justice Thurgood Marshall: I do not want anything outside the record.

I ask was there a presenting in the record?

Mr. Bruce J. Ennis, Jr.: Nothing in the record but there is in our brief a representation to the Court that both appellees would immediately petition for citizenship and become United States citizens if they did not have to renounce the land of their birth in order to do that.

Now the particular reasons why they do not want to make that enunciation are not in the record.

I could suggest some for this Court.

Justice Thurgood Marshall: I didn't' ask for it but if you want you just go ahead.

Mr. Bruce J. Ennis, Jr.: Well, Your Honor, they may for example wish to preserve the rather considerable benefits of dual citizenship for their children.

Justice Thurgood Marshall: Anyone of old time people like to stay on the record.

Mr. Bruce J. Ennis, Jr.: Well then I will not pursue that point further Your Honor.

Justice Potter Stewart: One of these named plaintiffs is Scotch and the other is what?

Mr. Bruce J. Ennis, Jr.: From Finland Your Honor.

Chief Justice Warren E. Burger: But I suppose in deciding the case we might just as well assume that were from Thailand, let's say Cambodia and U.S.S.R. --

Mr. Bruce J. Ennis, Jr.: Well Your Honor that

Chief Justice Warren E. Burger: -- or North Vietnam or Vietnam just now.

Mr. Bruce J. Ennis, Jr.: That does raise the due process argument in our brief which we I do not want to get into in detail but this Court has suggested in all of its previous alien cases that it has expressly left open a question of whether or not alienage might be a permissible consideration for state in the course of making an individualize determination about a job applicant's fitness rather making a wholesale band or class Y judgment and we do not think that that kind of inquiry would necessarily be precluded by previous decisions of this Court.

I will not discuss the due process arguments or academic freedom or supremacy clause arguments because I think they are covered adequately in our brief.

Thank you.

Rebuttal of Judith A. Gordon

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

Do you have anything further Mrs. Gordon?

Mr. Gordon: I only have possibly one sentence further Your Honor.

And that is, that it is completely immaterial to this classifying plan where the alien comes from whether he comes from Cambodia or whether he comes from Finland or Great Britain because so long as he has the capacity to choose citizenship and refuses to do so, he manifests the negative example that the statute seeks to avoid.

As to the rest of arguments made by the appellees, we think that they are appropriately answered in our reply brief.

Thank you very much.

Justice John Paul Stevens: Mrs. Gordon, let me just ask one question if I – I don't think it's repetitious but is there a characteristic of alienage, the class that's affected by this rule that has any relevance to their teaching ability and if so, what is it?

Mr. Gordon: Is there a characteristic that affect?

There is a characteristic that affects permanent resident aliens who refused to acquire citizenship that affects their capacity to teach effectively in terms of public education because they have eschewed by that choice to wit the choice not to acquire citizenship the very example of democratic participation that they are trying to, excuse me, trying to advance through the students in terms of the balance of the statutory probe.

The statutory and regulatory program that portion which we give certificates to certain temporary aliens who are under disabilities they have a characteristic or the absence of the characteristics which allows the affair in inclusion because they do not have the capacity to choose American citizenship while the are under disabilities, they do not present the manifestly negative example that the permanent resident who do does have that legal capacity presents.

Justice John Paul Stevens: I'm sorry I really did not understand your answer.

What is -- could you just tell me in a word, what is the characteristic of the group that is relevant to their ability to teach?

Mr. Gordon: The capacity to participate in democratic decision-making.

Justice Thurgood Marshall: And then applies to everybody from a social science teacher to a printing teacher?

Mr. Gordon: It requires --

Justice Thurgood Marshall: To a printing teacher?

Or home economics teacher?

Mr. Gordon: That is correct because all teachers are examples and in that way communicate values and attitudes but perhaps more significantly Your Honor, because in New York as indeed in every other state of which I am familiar at least, the curriculum for teachers for example in nursery through sixth grade includes all subject matters.

The curriculum for teachers from seventh through twelfth grades where there is an academic departmentalization naturally has that academic subject matter.

Justice Thurgood Marshall: They didn't teach kindergarten any printing?

Mr. Gordon: No, because we don't offer printing in nursery through sixth grades.

But to the extent that you have a high school situation where there is --

Justice Thurgood Marshall: I'm talking about elementary students.

Mr. Gordon: Elementary school, no sir, we don't teach printing and all teachers and elementary school teach all subject matter.

Chief Justice Warren E. Burger: Isn't there a rather simple answer into the question --

Justice Thurgood Marshall: Well, wait a minute.

Do the teachers in the dancing school on 44th Street teach everything?

Mr. Gordon: You mean the high school performing arts?

Justice Thurgood Marshall: Yes.

Mr. Gordon: But we just merely talking about --

Justice Thurgood Marshall: Well, isn't that a public school?

Mr. Gordon: No, the example you gave me Your Honor was nursery through sixth grade and that's how we excluded the printing example.

In secondary schools where education is departmentalized, naturally the teacher teaches in his subject matter but --

Justice Thurgood Marshall: We're talking about all the schools in New York.

You've got schools up around -- what's the name?

Albany.

Mr. Gordon: Which are not departmentalized?

Justice Thurgood Marshall: They are completely departmentalized in elementary schools.

Mr. Gordon: Well, Your Honor in New York secondary schools may or may not be departmentalized.

Where they are departmentalized, naturally the teacher teaches his particular course.

However, every teacher even in secondary school, even the printing teacher can be required by state law to teach on any given day of the week, Civics, Language, Science, and so on.

Justice Thurgood Marshall: And mop the floor?

Mr. Gordon: Well, I don't think mop the floor Your Honor.

Justice Thurgood Marshall: Well, yes.

Chief Justice Warren E. Burger: There is shallow, I wonder that you can navigate in response to these some of these questions.

Mainly that as a category, as a class, teachers who are aliens teaching in primary schools and secondary schools are category of people who reject American citizenship and announced that they prefer citizenship in some other country.

Mr. Gordon: That's exactly so.

Chief Justice Warren E. Burger: That certainly relates to the role model if it doesn't affect the substance of the teaching.

Mr. Gordon: That's absolutely true, Your Honor.

Thank you.

Chief Justice Warren E. Burger: Thank you counsel.

The case is submitted.

Featured:

Foley v. Connelie - Oral Argument

Sun, 08 Aug 2010 19:14:22 +0000

Case:

Foley v. Connelie

Media File:

76-839_19771108-argument.mp3

Related Transcript:

76-839_19771108-argument.xml

Transcript:

Argument of Jonathan A. Weiss

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

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

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

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

By such exclusion various constitutional precepts are violated.

First, there is a group at consideration.

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Jonathan A. Weiss: That is right.

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

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

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

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

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

The question is, when is that distinction important?

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

There are others who perhaps could.

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

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

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

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

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

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

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

Mr. Jonathan A. Weiss: That is correct.

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

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

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

The right at stake here is employment.

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

In particular, this is employment in a Police Department.

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

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

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

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

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

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

That was not suggested.

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

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

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

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

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

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

Do you think, illegal aliens are discrete insular group?

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

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

We would not want the discrete minority --

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

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

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

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

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

So anybody was painted by illegality.

The issue is not --

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

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

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

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

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

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

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

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

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

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

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

Mr. Jonathan A. Weiss: Yes.

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

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

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

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

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

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

So you make the same argument.

Mr. Jonathan A. Weiss: Yeah.

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

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

Unknown Speaker: Yes.

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

Unknown Speaker: Restricted citizens or aliens also there?

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

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

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

You list some and you do not know about handguns.

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

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

Mr. Jonathan A. Weiss: Yeah.

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

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

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

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

But I can again clarify that.

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

The city has felonies?

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

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

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

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

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

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

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

Unknown Speaker: Permission from the council.

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

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

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

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

I cannot answer that.

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

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

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

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

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

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

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

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

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

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

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

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

Ms. Gordon.

Argument of Judith A. Gordon

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice William H. Rehnquist: D22?

Ms Judith A. Gordon: Right.

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

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

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

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

It does not mean they are illegal.

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

Justice William H. Rehnquist: And this class --

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

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

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

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

Ms Judith A. Gordon: That is correct.

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

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

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

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

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

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

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

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

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

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

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

What does a court do with the class certification?

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

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

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

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

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

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

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

Ms Judith A. Gordon: Your Honor.

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

Ms Judith A. Gordon: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

His power to use force including deadly force.

His power to search.

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

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

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

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

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

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

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

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

Are aliens allowed to serve on juror?

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

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

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

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

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

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

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

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

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

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

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

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

Ms Judith A. Gordon: Pardon me.

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

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

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

Chief Justice Warren E. Burger: I see.

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

Do they not?

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

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

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

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

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

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

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

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

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

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

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

Chief Justice Warren E. Burger: The guidelines.

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

Chief Justice Warren E. Burger: Not really.

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

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

Would he not have to pay the exact same examination.

Ms Judith A. Gordon: Yes Your Honor.

He would have to --

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

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

It is a question of --.

Justice Thurgood Marshall: How were they strangers.

Ms Judith A. Gordon: Because by definition --

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

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

But they are --.

Justice Thurgood Marshall: They live right next to you.

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

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

Unknown Speaker: Ms. Gordon I take it.

I am repeating my question now here, opposition.

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

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

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

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

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

Ms Judith A. Gordon: Yes, Your Honor.

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

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

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

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

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

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

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

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

It is happen so.

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

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

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

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

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

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

Do you know the historical basis for this.

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

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

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

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

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

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

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

Ms Judith A. Gordon: Yes Your Honor.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ms Judith A. Gordon: Well, Your Honor.

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

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

Chief Justice Warren E. Burger: How about voting?

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

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

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

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

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

The dissent characteristics voting and legislating as political.

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

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

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

We believe that there are in fact such situations.

For example, the alien cannot vote.

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

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

Ms Judith A. Gordon: That is true.

Unknown Speaker: Anomaly of it be one.

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

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

Certain attorneys may indeed the governmental officers but not all.

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

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

In addition it is a illustrative.

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

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

Unknown Speaker: Now what about the decision to prosecute.

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

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

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

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

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

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

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

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

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

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

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

I think that is sufficient Your Honors.

Thank you.

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

Rebuttal of Jonathan A. Weiss

Mr. Jonathan A. Weiss: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

He is an all sort of the court.

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

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

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

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

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

They still not be able to make affirmations.

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

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

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

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

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

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

May a residents arrest.

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

Thank you very much.

Chief Justice Warren E. Burger: Thank you counsel.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

De Canas v. Bica - Oral Argument

Thu, 23 Aug 2012 18:29:52 +0000

Case:

De Canas v. Bica

Media File:

74-882_19751216-argument.mp3

Related Transcript:

74-882_19751216-argument

Transcript:

Argument of Robert S. Catz

Chief Justice Warren E. Burger: We will hear arguments first this morning in De Canas against Bica and Silver.

Mr. Catz you may proceed whenever you are ready.

Mr. Robert S. Catz: Mr. Chief Justice and may it please the Court.

The petitioners are here on a writ of certiorari to the California Court of Appeals, Second Appellant District.

This case raises the question of whether a state statutory scheme, which prohibits domestic employers from employing aliens not entitled to lawful residence, is unconstitutional under the Doctrine of Federal Preemption.

In 1971, the California Legislature enacted the Labor Code, Section 2805.

This statute was enacted in recognition by the California Legislature that the increasing numbers of illegal aliens coming into California were imposing severe hardships on the state's economy.

The statutes provides in part and the statute is reproduced in our brief, petitioners' brief at page three, that no employer shall knowingly employ an alien who is not entitled to lawful residence in United States, if such employment would have an adverse effect on lawful resident workers.

In addition to the above provision, 2805 imposes misdemeanor penalties on employers who utilize the Illegal Labor and in addition creates a private cause of action against employers, which allows employees to go into the Local Superior Court to enjoin employers' use illegal labor.

Now, the facts in this case are that petitioners, domestic farm workers from California were employed by respondents' farm labor contractors for approximately three months during the summer, harvest season of 1972.

In September of 1972, respondents laid petitioners off on the grounds that respondents had a surplus of labor and thus had no work available for them.

As a direct consequence of being laid off and believing that respondents were employing illegal labor, petitioners commenced this action in the Local Superior Court of Santa Barbara, California, pursuant to Section 2805, alleging that respondents were open and notorious employers of illegal labor.

In fact, at one point in our complaint, petitioners alleged that during the four-month period in 1972, the United States Boarder Patrol visited the work site of respondents and apprehended over 40 illegal aliens.

Among other things, petitioners sought their own job reinstatement, damages and a permanent injunction against respondent's willful and continued employment of illegal aliens.

After full evidentiary hearing on a motion for preliminary injunction in which petitioners sought to present evidence of respondents’ use of illegal labor, respondents filed a demur, challenging the validity of Section 2805 on the ground that statute was preempted by the Federal Immigration Law.

The Trial Court granted respondents' demur and declared Section 2805 unconstitutional on several grounds, but specifically on the ground that the statute was preempted by Federal Immigration Law.

Petitioners subsequently appealed this ruling to the California Court of Appeals, which it affirmed and the Cal. Supreme Court denied petitioners’ request for discretionary review.

A petition for cert was sought to this Court and granted.

At issue here today is the constitutionality of a state’s statutory scheme, fashioned to protect citizens and lawful resident workers from the unfair competition caused by the influx of illegal aliens into California.

That the problems of illegal aliens is one of great public importance, of course, is not in dispute today.

This Court took the opportunity to outline the scope of the problem just last term in its series of U.S. Boarder Patrol Cases.

In California, the problems of illegal aliens is particularly huge, since California -- because of California’s close proximity to the Mexican border.

Illegal aliens go virtually unchecked producing drastic effects, particularly on low income and minority residents who suffer substantial job displacement.

In addition, illegal aliens create a substantial wage (Inaudible) into Mexico, adversely affecting the local economies.

Justice William J. Brennan: (Inaudible) is whether is this field has been preempted by Federal Legislations?

Mr. Robert S. Catz: That is correct, Your Honor.

Justice William H. Rehnquist: Was it clear from the decision of the California Court of Appeals that your clients would have been entitled to relief under the California statute, had it -- the Court of Appeals not found it to be preempted?

Mr. Robert S. Catz: I think that if you look at the appendix, Your Honor, in the Superior Court's opinion, he expresses the view that he had no doubt that we could have established the facts of the case.

Justice William H. Rehnquist: You are talking about the Superior Court rather than the Court of Appeals?

Mr. Robert S. Catz: That is Correct.

Justice William H. Rehnquist: How about the Court of Appeals?

Mr. Robert S. Catz: I do not think the Court of Appeals really addressed that because the case went up on a demur, it was just considering the statutes, the validity of the statute itself.

Thus we submit that without a favorable adjudication of the constitutionality of Section 2805, the continued employment of illegal aliens who may render jobless thousands of lawful resident workers in California, in addition, domestic employers who by long time business practice intentionally seek out and rely on illegal labor will profit at the sake of the economy and will do so with total impunity.

At this time I think it might be helpful if petitioners outline for the Court, how the state statutory scheme operates and what obligations it imposes on domestic California employers.

In 1971, when the statute was enacted, it imposed the primary enforcement obligations of the statute on the California Labor Commissioner.

Pursuant to Section 2805, the California Labor Commissioner promulgated a comprehensive set of regulations interpreting Section 2805 and the regulations are found at pages 1A through 3A of petitioners' reply brief.

First, the California Labor Commissioner defines an alien not entitled to lawful residence.

The Commissioner defines an alien entitled to lawful residence as any non-United States’ citizen who possesses documentation issued by the Federal Government, authorizing him or her to work.

Thus, when an applicant and employee seeks employment and an employer has an express obligation to inquire whether the applicant be either a citizen or an alien.

If the applicant employee claims to be a citizen of the United States he must sign a declaration to that effect under oath.

If an applicant claims to be an alien, he must then display proper Federal Documents that are issued by the United States Department of Labor, attesting to his employment certification and now this must be done within three days of commencement of employment.

Employer liability then attaches when he fails to take the steps I have just described and an employee is found to be -- later on an employee is found to be unlawful resident alien.

Justice Potter Stewart: Mr. Catz, the statute is conditional.

It says no employer shall knowingly employ an alien who is not entitled to lawful residence in the United States.

if such employment would have an adverse effect on lawful resident workers.

Has it been any administrative definition of that condition?

Mr. Robert S. Catz: Yes, there has Your Honor.

The last regulation -- it is in the brief at page, reply brief, at 3A, defines what an adverse effect.

Now 28 --

Justice Potter Stewart: Where is it now?

Mr. Robert S. Catz: That is at page 3A, petitioners' reply brief.

Justice Potter Stewart: Of your reply brief, page 3A?

Mr. Robert S. Catz: Yes.

Now, Section 2805 requires that use of illegal labor must have an adverse effect on lawful resident workers as you have pointed out Your Honor.

Adverse effect arises whenever illegal labor is employed in an occupation not deemed to be a shortage of labor in that field by the Secretary of Labor and the United States Department of Labor.

Now, the Department of Labor promulgates and lists those areas of employment in this country where there is a shortage of labor and those regulations are found at 29C of our Section 60 at sect.

In addition, adverse effect is defined -- arises whenever an employer pays an illegal worker less than the prevailing minimum wage, either State or Federal.

Thus for purposes of a hypothetical, physicians is one occupation or profession in which the Secretary of Labor has deemed that there is a shortage in this country.

So that if an illegal alien came to California and was engaged as a brain surgeon and was employed by the California Hospital, as long as the California hospital paid him in excess of the minimum wage, the hospital employer would not be subject to liability.

In the case we have here today, there is a surplus of agricultural labor and in other words, liability attached against the respondents because the Secretary of Labor of the United States did not list agriculture as a field in which there was a shortage of labor.

Where Federal and State Laws have regulated in the same area, this Court is evolved two basic approaches in determining the constitutional preemptive ability of the state law in question.

The first approach or test is often referred to as occupation and that renders any state attempt to regulate a Federal area invalid, even though it maybe agreed that the states’ scheme does not impair, but enhances and aids in the achievement of a Federal goal.

The Lower Court in this case held and this is the area that we complain off, is that 2805 was an attempt by the State of California to legislate in the area of immigration and the Lower Court concluded that Congress by the mere enactment of a Comprehensive Immigration Nationality Act, that of 1972, thus had expressed its intent by just the mere enactment to have occupied the field.

Now, we believe that the Lower Court erred because any judicial preemption decision in this case, based on the occupation test, should not have been applied and we say that because, first, there is no textual evidence in the Immigration Nationality Act, where its legislative history or even other Federal Laws, the Congress specifically intended to preclude the states from enacting limited statutes such as 2805.

We submit that Section 2805 is not an Immigration Law, but a law that regulates the labor practices of domestic employers.

We will concede that the statute's long range affect thus have an indirect and incidental effect on immigration, but the statute does not regulate immigration policy.

Instead, the statute prescribed a specific employment practice of domestic employers.

Section 2805 and the simple many regulations issued by the California Labor Commissioner, use Federal Immigration and Labor Law definitions to effectuate a Local Labor Law Policy.

The statute in no way alters Federal determinations concerning entry into the United States and in what terms and conditions entry maybe made.

Section 2805 merely precludes the knowing employment by California employers of those individuals defined by Federal Law Administrative Practice is not authorized to work in United States by virtue --

Justice William J. Brennan: Is that the Federal Statute to impose a penalty for knowingly employ an alien, (Inaudible) could that ever pass?

Mr. Robert S. Catz: No, Your Honor.

That would be the H.R. 8713 reported out of Mr. Elburg’s committee.

Justice William J. Brennan: And where does it stand now?

Mr. Robert S. Catz: It is -- we have heard testimony.

The Bill has been reported out of the House.

It was supposed to go to the House Rules Committee and that is scheduled for the spring according to --

Justice William J. Brennan: So it is still a live effort, is it?

Mr. Robert S. Catz: It very much is.

But there is no --

Justice William J. Brennan: If that would have passed, would that make a difference?

Mr. Robert S. Catz: It might.

It is my feeling that it certainly would not-- it would deal with the problem, but whether how it would affect this case, I hazard to say.

I might say that there is no action foreseen on the Rodino Bill in the Senate at all and no hearings were scheduled and my information is that not to expect it.

Justice William H. Rehnquist: Mr. Catz I presume your case is stronger by virtue of the fact that California’s regulation is limited just to illegal aliens rather than if it had been addressed to all aliens, legally or illegal?

Mr. Robert S. Catz: Well, it goes a little bit beyond the illegal aliens.

In other words, it defines lawful resident aliens as anybody who really is not certified by the Department of Labor to work.

Thus for example, if a student from South Korea was attending the University of California at Berkeley and decided to get a job during the summer and did not have proper certification from the Department of Labor to authorizing him to work and an employee who is adversely affected by him or her taking that position could get injunctive relief under Section 2805, but the primary purpose of the statute, of course, was to deal with the problems of illegal aliens which Congress has refused to deal with, at least in the employment area.

Justice William H. Rehnquist: If you deal with lawful aliens you have got problems with the cases like Truax against Raich?

Mr. Robert S. Catz: That is correct, but when I use the term lawful residence that is the definition that does not come from the Federal scheme.

That is the Labor Commissioner's definition of dealing with who is allowed to work by Federal Standards.

There may very well be people who are entitled to be in the United States, but not entitled to work and so the statute goes a little bit beyond the illegal aliens.

Anybody that comes into California who is either a citizen or authorized to work by the Secretary of Labor will not be affected by Section 2805.

Justice William J. Brennan: I gather that (Inaudible) Appellate Courts has held as this one did, this is the second is it not?

Mr. Robert S. Catz: That is correct, Your Honor

Justice William J. Brennan: It has held that 2805 unconstitutional?

Mr. Robert S. Catz: That is correct.

It actually preceded our case by a week.

It was argued the same month.

The appellants in that case were the State of California and for some reason they declined to take the case to the California Supreme Court.

Justice William J. Brennan: And the California Supreme Court refused to review this one?

Mr. Robert S. Catz: That is correct.

Justice Potter Stewart: Mr. Catz (Inaudible) my brother Rehnquist a moment ago.

I understood you to say that as you told us earlier that the statute does not -- as administratively construed, it does not mean one seems to say, it does not apply to aliens who are not entitled to lawful residence, but rather to aliens who are not entitled to work in the United States?

Mr. Robert S. Catz: That is correct, Your Honor.

I would --

Justice Potter Stewart: As determined by the Federal Authorities, by the (Inaudible)

Mr. Robert S. Catz: That is correct.

Justice Potter Stewart: And to that extent you say this precisely is congruent with the Federal Classification and no more than effectuates the Federal Policy?

Mr. Robert S. Catz: That would be our position, Your Honor.

I would be willing to concede that perhaps in the absence, I will not strongly concede it, but in the absence of the California Labor Commissioner's implementing regulations, interpreting Section 2805, that the statute itself would be seriously in question in terms of its validity.

However, it is our position that the California Labor Commissioner's definitions and policies salvage 2805.

Justice Potter Stewart: And what is the sanction if any in the Federal Scheme, it is simply deportation of the alien, is it not?

Mr. Robert S. Catz: That is correct.

I think it is significant to note that first of all, in the area of employment other than in the Farm Labor Contractor Registration Act which I will be addressing in a few minutes, there is no federal law which deals with this area that California has entered into.

But it is important to point out that illegal aliens do not even come in contact with the State of California in Section 2805.

If for example the California Labor Commissioner were to go out and visit an industrial factory and discover that there were 500 illegal aliens working there, the California Labor Commissioner would have no authority to apprehend the alien itself.

The entire relationship is between the employer and the State of California and of course, California does not stand at the Mexican border and waive people of.

Justice Harry A. Blackmun: (Inaudible) response to my brother Stewart that this is congruent in its application with the Federal statute?

Mr. Robert S. Catz: Well, I am just saying that the Section 2805 merely adopts the standards that the United States Department of Labor utilizes in determining who can work.

Justice Harry A. Blackmun: You mean that is the Schedule A, is it in the 29 CFR?

Mr. Robert S. Catz: That is correct.

In schedule B as well.

Schedule B in 29 CFR lists those occupations in which there is no shortage and Labor Certification would not be allowed by the --

Justice Harry A. Blackmun: Specifically then it is congruent with the Labor Department Regulations?

Mr. Robert S. Catz: That is correct.

Justice Harry A. Blackmun: That was-- no particular Federal Statute?

Mr. Robert S. Catz: Well, that code of regulation of course is promulgated pursuant to the references in the Immigration Nationality Act inviting the Department of Labor to determine those occupations in which there is a shortage or surplus of labor.

Justice Byron R. White: Well, there is a Federal Provision with respect to the employment of illegal aliens?

Mr. Robert S. Catz: No, Your Honor.

Well, there is none in the Immigration Nationality Act.

There is in the Farm Labor Contractor Registration Act, but that is limited to the Farm Labor context and not to industrial employers.

Justice Byron R. White: Yes.

But let us suppose you are talking in the area of Farm Labor and the same issue came up, do you think the state -- what if the California Law were just limit it to Farm Labors?

Mr. Robert S. Catz: Well, I would draw to the Court's attention for purposes of our preemption discussion, Section 15 of the Farm Labor Contractor Registration Act Amendments of 1974 provide that --

Unknown Speaker : (Inaudible)

Mr. Robert S. Catz: Yes.

I am sorry Your Honor, that is at page 32 of petitioners' opening brief.

Unknown Speaker : (Inaudible)

Mr. Robert S. Catz: White, Your Honor.

Justice Byron R. White: Now but -- now you would argue that if the California Law were limited to the Farm Labor situation, there would be no preemption because the Federal Law dealing with the same subject matter expressly saves state Law?

Mr. Robert S. Catz: That is Correct Your Honor, but --

Justice Byron R. White: And you would say that would be effective despite the Immigration Law?

Mr. Robert S. Catz: That is correct.

I think that the --

Justice Byron R. White: And do you not think that is somewhat persuasive with respect to the validity of the California Law in it is entirety, with respect to the intention of Congress?

Mr. Robert S. Catz: I think it is Your Honor.

I think that Congress is less spoken on the area of illegal aliens with the Farm Labor Contractor Registration Act and it deals to get to the -- it attempts to get to the root of the problem.

I think a final word perhaps needs to be mentioned about the anti Harboring Provisions of the Immigration Nationality Act and they are at page 7 of our rely brief.

This is the only specific Federal Statute which respondents argue, poses a potential conflict with Section 2805 and that is Section 274 (a) (3) of the Act and this Section provides that any person who “willfully or knowing conceals, harbors or shields from detection any alien not duly admitted or not lawfully entitled to enter and reside within the Unites States shall be guilty of a felony.”

Now, to prevent the interpretation that employment per se would constitute a crime under this Section and I emphasize the word this Section, Congress added the following proviso, “Provided, however, that for purposes of this Section, employment, including the usual and normal practices used in the employment shall not be deemed to constitute harboring.”

Now, this statute while exempting employment pre se from the crime of harboring, does not purport to grant an absolute exemption from criminal or civil sanctions for employers of illegal aliens.

There may well be given set effects in which the knowing employment of illegal aliens, particularly where an element of concealment or procurement is involved.

May subject an employer to criminal sanctions under the Act.

Now, there has been no specific judicial interpretation of 274 (a) (3) I believe by this Court, but examination of the legislative history reveals that the Congressional intent was to protect the innocent and unknowing employer from prosecution under this Section.

So we would argue the 274 (a) (3) indicates no more than Congressional silence regarding the prohibition against the intentional and knowing employment of illegal aliens.

This Section does not express an intent to protect the knowing employment of illegal aliens either in its text or in its legislative history and neither thus this Section express an intent by Congress to preempt the state --

Justice Harry A. Blackmun: Well, I gather that you are relying, if I read your brief correctly, rather heavily on what was done in the Farm Labor Contractor Registration Act, even though that is limited only to Farm Labor since that expressly says that it is intended to supplement the state action.

If that itself is evidence, have express, explicit on the part of Congress, then that in this whole field State regulation was permissible?

Mr. Robert S. Catz: I agree, Your Honor, that we are in relying heavily on the Farm Labor Contractor Registration Act Amendments and actually if this --

Chief Justice Warren E. Burger: (Inaudible) Mr. Catz.

We do not have the Solicitor General here to inquire further, but if the conclusion of his brief or his memorandum filed in opposition to your cert, he says --

Mr. Robert S. Catz: What page, Your Honor?

Chief Justice Warren E. Burger: At page six, the final, second to the last paragraph.

In considering legislation making employment of aliens a crime, yet the Congress has indicated that the problem is a national one which requires a more delicate balancing of interests and can be -- then that achieved by California Law.

Do I get an undertone there that there is a delicate diplomatic problem that enforcement of the California type of statute would irritate to Mexican, Central American -- Mexico and Central American countries?

Mr. Robert S. Catz: Well, of course respondents have vigorously argued that point and gone one step further and suggested for example that Section 2805 will drive illegal aliens out of California into neighboring states and I would like to just say that perhaps the potential is there for that, but in fact there is no mechanism for enforcing the statute.

I would be less than candid if I would say to the Court that Section 2805 will be a panacea for solving the immense problems that California is having.

However, I would say that if the statute has any value, is that it at least provides a vehicle until Congress fails to act to deal with a limited number of employers in California that knowingly hire illegal aliens and use it and rely on illegal labor in running there business.

California does not have the resources to strike out against employers, but at least it will be in the position to deal with those of few employers that will be abusive.

So I do not think there is an actual problem that will transcend beyond the California borders.

Justice William J. Brennan: (Inaudible)

Mr. Robert S. Catz: The problem is National

Justice William J. Brennan: (Inaudible) turn to page four of the Solicitor General’s memorandum, you notice that footnote 4, this is addressed to your argument based on the Farm Labor Contractor Registration Act, he says while that Act, the Farm Act contemplates some limited room for state laws.

The state law must be approachable and 2805 is not wholly in accord with federal policy and thus not appropriate.

I gather that is an attempted answer to your proposition that since Congress already said, the states may operate in the field of Farm Labor, then that must also be an expression of Congressional intent that states may operate generally in the field of all aliens, is that right?

Mr. Robert S. Catz: I would think so, but I would be -- I am little lost to understand the Solicitor’s conclusion that it is not appropriate.

Of course, I do not recall anything in the --

Justice William J. Brennan: What is that 205 want (Inaudible)?

Mr. Robert S. Catz: The word appropriate comes from the language of the Farm Labor Contractor Registration Act on Section 15 and I do not know what the Court, I mean, what the makers of the Bill meant by appropriate.

I would like to urge the Court that it --

Justice Byron R. White: It seems to me that at least goes some direction towards -- conceding that there is no overall preempts in just from the existence of the – of an un-exercised Federal Power?

Mr. Robert S. Catz: I think that is correct and that would be one of the arguments.

I think that this case, if I may suggest to the Court, can be adequately disposed on on a very narrow ground and that is that the Court of Appeals rendered 2805 unconstitutional on the basis that by Congress’ mere enactment of a Comprehensive Immigration Nationality Act, that Congress intended to occupy the field without there being anything more.

We would suggest that the Court dispose of this case in the same manner in which it disposed of the Dublino case which was a recent preemption decision of this Court where New York had it implemented a State WIN Program and there was a federal WIN Program and the Lower Courts declared that the State WIN Program was preempted by Federal Immigrate -- by the Federal ADC Program.

In rendering the decision in this case, this Court did not reach the conflicts question and we are merely suggesting that this Court need not reach the conflicts question either, that it can render its decision based on the occupation test alone.

Justice Byron R. White: I do not believe I understand the --

Mr. Robert S. Catz: Well, I am merely suggest --

Justice Byron R. White: (Inaudible) asserted in this case that the state law even if there is no overall (Inaudible) on the Federal power that there is a conflict between state law and federal law, an actual (Inaudible).

Mr. Robert S. Catz: I would suggest to you merely that since the Lower Court rendered its decision based on the occupation test alone that perhaps might be the only question that was before the Court.

Of course we have --

Justice Byron R. White: Occupation, you mean Federal Occupation of the (Voice Overlap)?

Mr. Robert S. Catz: Federal -- that is correct.

Unknown Speaker : (Inaudible)

Mr. Robert S. Catz: That is merely one suggestion that I will offer and I only -- and I do that simply because of the way this case disposed of the Dublino matter.

Justice William H. Rehnquist: With the thought that perhaps the California court would have a sharper idea than we would of the application of 2805?

Mr. Robert S. Catz: Yes.

In all candor, I do not think and I say so respectfully, I do not think the California court knew why it rendered the case unconstitutional.

There are overlapping doctrines in its opinion and it is hard for the reader to conclude whether they reached the preemption decision on either occupation or conflict and I invite the Court to look at that opinion.

In closing, we respectfully urge this Court to reverse the Lower Court's declaration that Section 2805 is unconstitutional on the grounds of federal preemption.

We do so because we believe that Section 2805 is but a labor statute that touches on the field on Immigration Law in an incidental manner, but in a very limited area that Congress has not expressly indicated its intent to occupy the field and finally the statute far from conflicting with Federal Law, furthers the accomplishment of Federal Law, policies, and therefore, it is not preempt.

Justice William J. Brennan: (Inaudible) I mean shaped for us that we -- whether we agree with you that has not been an occupancy in the field and there is room for state regulation.

Is the record sufficient so that we can decide whether in fact the state law in conflict?

Mr. Robert S. Catz: I think there is room in the record and there was a substantial transcript as well.

Justice Byron R. White: How about the -- if the state court did not really reach the question which you suggest they did not, is that right?

Mr. Robert S. Catz: I think the opinion is rather nebulous and I --

Justice Byron R. White: Then we would not know precisely what the state law reaches or what it means?

Mr. Robert S. Catz: Perhaps you Honor.

That of course is for the Court to determine.

Thank you.

Chief Justice Warren E. Burger: Mr. Marrs.

Argument of William S. Marrs

Mr. William S. Marrs: Mr. Chief Justice and may it please the Court.

It is respondents’ position that 2805 of the Labor Code is unconstitutional on three grounds.

The first is that it deals with Foreign Affairs and Immigrations and which is a subject of such down the Federal concern, that states are precluding from legislating in that area.

Clearly, 2805 will discriminate against the nationals and the foreign sovereign.

This may be a subject which Congress may want to do, but it is our contention that it is not up to the State of California to take that in their hands.

Justice Harry A. Blackmun: (Inaudible) State of California may do so?Mr.

Mr. William S. Marrs: Yes.

In the case of Farm Labor, 2805 applies to all employers.

Justice Byron R. White: You think the state laws are (Inaudible) separable or invalid the -- in part it might be not?

Mr. William S. Marrs: I am not sure I understand the question.

It is separable as to Farm Labor only?

Justice Byron R. White: Well, the California Law at issue here -- it covers farms as well as industrial labor?

Mr. William S. Marrs: Yes.

Justice Byron R. White: What if it were in so -- if it -- let us assume that if it were just a Farm Labor Law it would be valid?

Mr. William S. Marrs: I would disagree with that because --

Justice Byron R. White: Well, let us assume that it was, could this law be upheld insofar as it applied to farm labor?

Mr. William S. Marrs: If 2805 applied only to farm labor, I would say that it could not be upheld because the Farm Labor Contractor Registration Act took into account the state scheme, but that was as far as the Safety and the Health Standards.

There are some 12, I believe states who already have laws regulating Farm Labor Contractors and as far as the health and the safety of the employees and I believe that is what that was after and not that they had passed laws regulating the employment of illegal aliens and they were just inviting them to do that.

2805 also controls immigration rather than just being a Labor Law.

First of all the so-called illegal aliens will be unable to secure employment in the State of California and those that are working will be terminated.

There is also a group of aliens that are not entitled to lawful residents, but who are able to work under the Federal Scheme who would not be entitled under 2805.

Now, petitioners put much reliance on the regulations that -- which try to save 2805.

Those regulations were adopted three days after a Superior Court Judge in Los Angeles declared 2805 unconstitutional in the Dolores Canning case which was the other appellate case and they were --

Justice William H. Rehnquist: When would see other alien, you mean the green card people that come across on a daily basis --

Mr. William S. Marrs: I will get to those.

It is going to regulate those also.

Unknown Speaker : Are you intimating that the regulations were prepared in that three-day interval?

Mr. William S. Marrs: I am sure they were and I also think that if this Court upholds 2085, a Labor Commissioner could rescind those regulations and we are right back to the statute again with no regulations.

So then we have what is an adverse effect, who is entitled to lawful residence.

The regulations are not embodied in stone.

Also in California particularly there is a problem with illegal aliens who have come across into California, particularly in Southern California who have got jobs, have families, married and had families and they are protected from deportation by the Immigration and Nationality Act, but they are not given a document by the Immigration Authority to -- that they can work or anything and if this was enforced, those people while they are trying to get their status adjusted from illegal alien to lawful resident alien would be unable to work and that would frustrate California --

Unknown Speaker : If they are unable to work, are they not disqualified from working as a matter of Federal Law?

Mr. William S. Marrs: No, they are not.

In fact those people are encouraged by the Immigration to keep working to support their families until they can get there status adjusted.

Justice Potter Stewart: I understood and perhaps I misunderstood it.

I understood your brother's submission to be that under these regulations, under California regulations, anybody permitted to work as a matter of Federal Law is permitted to work under the statute?

Mr. William S. Marrs: Well, the regulations say --

Justice Potter Stewart: Did I misunderstand that?

Mr. William S. Marrs: Well, no.

That is -- the regulation says anyone in possession of the green card or any other Federal, any document issued by the Immigration that authorized them work.

But they do not issue these documents to one of this aliens who are subject to having their status adjusted.

They know where they are and it takes a period of time to get their -- they have to investigate their background and they do not issue them letter or anything that says they can continue to work because it is not a problem in the Federal Statute.

Justice William H. Rehnquist: Well, when you say subject to having their status adjusted, that means they are illegally here?

Mr. William S. Marrs: Yes.

Justice William H. Rehnquist: And they are not authorized by the Federal Government to work?

Mr. William S. Marrs: Yes, they are authorized to work.

Justice William H. Rehnquist: Expressly authorized?

Mr. William S. Marrs: Well, they did not come in under a Visa, but the policy of the Government is to continue them to work while they are having their status adjusted.

Justice William H. Rehnquist: But of -- that is a matter of discretion.

I mean, they can make an application for status adjustment and may be turned down by the Commissioner (Inaudible)?

Mr. William S. Marrs: Yes.

But under this, I do not know how many, but I am sure would be on a thousand would have to make an application to get their status adjusted or loose there job.

Justice William H. Rehnquist: And deportation has been suspended pending outcome of the change in status hearing?

Mr. William S. Marrs: Yes.

Justice Lewis F. Powell: Are you talking about the same type of aliens in the Government to make such an effort to keep from crossing the border?

If so --

Mr. William S. Marrs: Initially --

Justice Lewis F. Powell: If so, why are they not arrested and deported, if they may be arrested as they cross the border?

Mr. William S. Marrs: Usually these are people that have been here for four or five or even 10 or 20 years who have families and are now a part of the community and they are either a parent, a child or a spouse of a citizen or a lawful resident alien and the Government's policy is to keep them in the country until they can get their status adjusted otherwise they are going to break up the family units.

Unknown Speaker : So they have offered a get away with it better as their status?

Mr. William S. Marrs: I do not think that is probably true.

Yes.

Unknown Speaker : I did not hear you.

Mr. William S. Marrs: Yes that is true.

Congressman, since I believe has a Bill in right now to recapture those or to, everyone that has been in the country.

I think it is three years will be granted an amnesty type thing so that they can have their status adjusted.

Justice Thurgood Marshall: How does the Government justify and not giving Green Cards to them?

Mr. William S. Marrs: Well, the Green Card is given.

Justice Thurgood Marshall: Well, none of that is in the record, is it, you are talking about?

Mr. William S. Marrs: What?

On the Green card?

Justice Thurgood Marshall: Yes.

Mr. William S. Marrs: No.

Justice Thurgood Marshall: And in fact there is some are here without Green Card, but the federal Government allows them to work, is that in the record?

Mr. William S. Marrs: Well no, it is the practice of the --

Justice Thurgood Marshall: Well, is it in the record?

Mr. William S. Marrs: No it is not

Justice Thurgood Marshall: Well, how can we consider it?

Mr. William S. Marrs: I was just bringing in up in relation to the petitioners' reply brief as far as the I151 Cards in the documents.

Justice Byron R. White: Suppose we disagreed with you and with the Lower Court with respect to the general preemption or occupation ground, are you urging us here to sustain the judgment on the ground that there is an actual conflict between them?

Mr. William S. Marrs: Yes.

I think there is an actual conflict with 1324 (a)

Justice Byron R. White: But the Lower Court did not decide that?

Mr. William S. Marrs: Well, the Lower Court went on the occupation ground that the Immigration Nationality Act was so comprehensive that the states were precluded from them acting even though the Federal scheme was not.

There was a void there.

I think 2805 in the Regulations brings us right into the situation of Truax and that is if 2805 is valid then prudent employers in the State of California will refuse to hire all aliens, whether they are illegal, Green Card or whatever status so that the burden is not on them to determine the legal status, These people are not protected by Title VII as far as their alienage is concerned and they would either loose their jobs or would have to take lower paying jobs where employers needed to recruit other people from the workforce.

Justice Potter Stewart: Why on earth would an employer hesitate under this California Statute to hire an alien who had a Green Card because in order to be, to violate the State Statute he has to knowingly employ an alien who is not permitted to work in the United States?

Mr. William S. Marrs: Well, then he is put on the position of judging whether the Green Card is valid to start with and he becomes the arbitrator as to a -- is he inherently legally or is he not inherently legally where it would be much safer for him just to hire all citizens --

Justice Potter Stewart: Duality?

Mr. William S. Marrs: And I think in California that would -- especially in Southern California, that is a real possibility.

Justice Byron R. White: But he does not violate it unless he knows that the man is here illegally? I mean, he knows when he hires him, but he also must know that he is violating the statute?

Unknown Speaker : If he has a Green Card how could he possibly be knowingly hiring somebody who is not entitled to work?

Mr. William S. Marrs: Well, maybe the Green Card is a forgery.

I mean, he cannot tell.

I mean, maybe he cannot, maybe it is a bad, maybe it is a Bad Green Card that is obviously bad.

Justice Thurgood Marshall: (Voice Overlap) passports are all forgeries?

Mr. William S. Marrs: That is conceivable.

Justice Thurgood Marshall: But you could not evict a man for that.If he looks of what appears to be a legitimate Green Card, how could be charged with not doing that?

Mr. William S. Marrs: Then I think he get, kind of, what is a legitimate Green Card or someone else, that is an alien that is entitled to work, but does not have a Green Card.

Chief Justice Warren E. Burger: Was not the Green Card valid on its face?

Would that not constitute an abundant defense to a criminal action?

Mr. William S. Marrs: (Inaudible) Well --

Chief Justice Warren E. Burger: In California Courts?

Mr. William S. Marrs: I do not know.

That has never -- this law has never gone into effect the date it was to take effect.

It was enjoined by a Superior Court so we have never had any.

We do not have any case law under that all.

If a alien was a 151 one card looses this one, apply 151 card or has it stolen then he also has a burden on him.

He cannot -- under this until he gets a new card, the employer would not hire him and it takes from six months to two or three years to get a new I151 Card.

It is also our position that 2805 is unconstitutional because the Immigration And Nationality Act of 1952 has so -- is so comprehensive that they have left no room for the states to legislate and I think there is a specific intent by Congress to occupy the field here.

The nature of the subject matter in Foreign Affairs and Immigration, the pervasiveness of the legislation is very comprehensive.

The legislative history indicates that Congress thought they were passing the Comprehensive Bill.

The only earlier State Legislation on this was struck down as violating the Foreign Commerce Clause and in 1917 when the Immigration Nationality Act was passed, they continued until 1952.

There had never been valid State intrusion into these affairs.

If 2805 falls within the parameters of the Hine’s decision, we contend because there is such a comprehensive scheme of regulation that the states cannot help it, they cannot herd it, they cannot do anything to it.

They have to stay away from it.

The third ground upon which we believe 2805 is unconstitutional is that it is in direct conflict with 1324 (a).

2805 makes the crime to knowingly employ an alien not entitled of lawful residents.

1324 (a) grants an exemption for such an employment.

Justice William H. Rehnquist: Is 1324(a) is a California statute?

Mr. William S. Marrs: No.

That is the Immigration and Nationality Act which the --

Justice William H. Rehnquist: Where is that cited or set out in your brief?

Mr. William S. Marrs: In my brief it is at page seven of the appendix.

It is U.S.C. 1324 (a).

Justice William H. Rehnquist: Thank you.

Mr. William S. Marrs: At 7E and the proviso was on page eight, provided however.

Also Congress’ action with these Bills, HR982 and 8713, both of those Bills are --

Justice Byron R. White: Even if there was a conflict law and I am not sure there is.

What about the Civil Remedy under the California statute?

There is one is it not?

Mr. William S. Marrs: Yes there is.

Justice Byron R. White: Well, I do not see any preclusion of the Civil remedy, do you?

Mr. William S. Marrs: As regards 1324 (a) there is some.

Unknown Speaker : Alright, thanks.

Mr. William S. Marrs: HR982 and now 8713 specifically repeal that proviso and attach liability to the employer.

It is interesting to note that the way they do it, those are three-step process and that is one they give a citation to the administrative fine and then three there is a criminal penalty and Congress did this I think trying to balance on interest because there are various groups that feel this will cause discrimination against minorities if they --

Unknown Speaker : Is this on Roman 9 and Roman 10 of the 4618.

Mr. William S. Marrs: That will cause discrimination of by employers against minorities in this field.

Unknown Speaker : This was amended you say the proviso on page VII of your appendix to your brief has been amended?

Mr. William S. Marrs: It is been deleted in the proposed legislation.

Unknown Speaker : Proposed.

It is only a bill is it not?

Mr. William S. Marrs: Yes.

Justice Potter Stewart: That proviso is till in effect and there is a Bill pending that would delete it and would substitute a three-step process.

The first (Inaudible) first a warning, I think and then --

Mr. William S. Marrs: The citation and then a fine and then a criminal penalty.

Justice Potter Stewart: And that is so far it is pending legislation?

Mr. William S. Marrs: That is correct.

And that is a -- I think that shows a little of evidence that Congress is well aware of this problem and they are trying to find a way to solve it and California’s way is not their way.

They specifically rejected the original Bill, came in with a -- leave us a thousand dollar fine the first time out not similar to California it is only lesser amount and they rejected that because they thought it was too severe and would cause problems on employers and it would cause importers to discriminate against a certain minorities.

Justice William H. Rehnquist: Of course Congress has been a lot aware of it long time and has not done much about it?

Mr. William S. Marrs: Yes.

In fact they were aware of it in 1952 when they passed the Act and in the legislative history --

Chief Justice Warren E. Burger: Is there any doubt that Congress if it elects to occupy the entire field could nullify all state statutes in this area ultimately?

Mr. William S. Marrs: I believe they already have, but there is no doubt that they can.

Chief Justice Warren E. Burger: If they have it they certainly can, can they?

Mr. William S. Marrs: Yes.

Of course, that is inherently in the sovereign power of the nation.

When the Act was passed there was reference by the petitioner to Congressional record, Senator Douglas in 1952 offered an Amendment to Senate Bill 1851 which became this exemption 1324 (a) and his Bill would have removed that exemption and made it a crime to knowingly employee and employer and that Amendment was turned down.

So, in concluding it is our position that this subject is of such a dominant federal concern and Congress has weighed the burdens on the rights of all aliens in this Country in that the federal branch conducts Foreign Policy and Foreign Affairs and that California is intruding into this area and they are prohibited from so doing.

Justice Thurgood Marshall: Mr. Marrs (Inaudible) point, is there some California reason for this (Inaudible) --[Laughter]

-- which you cannot read?

Is there some rule out there?

This is the third time we have had it in two weeks.

Mr. William S. Marrs: Are they California cases?[Laughter]

Unknown Speaker : (Inaudible)

Mr. William S. Marrs: Well, I believe it is the printers choice and that the --

Justice Potter Stewart: If do not they include, you cannot see the black pentagon?

Justice Thurgood Marshall: But could you persuade the (Inaudible) in the future, you know, to sort of help poor eyes --

Mr. William S. Marrs: I will send him a note on that.[Laughter]

Chief Justice Warren E. Burger: Counsel, I have anticipated that and instructed the clerk to reject any such briefs hereafter.[Laughter]

Mr. William S. Marrs: Thank you.

Unknown Speaker : (Inaudible)[Laughter]

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Attribution:

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Examining Board v. Flores De Otero - Oral Argument

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Case:

Examining Board v. Flores De Otero

Media File:

74-1267_19751208-argument.mp3

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74-1267_19751208-argument

Transcript:

Argument of Miriam Naveira De Rodon

Chief Justice Warren E. Burger: We will hear arguments next in Examining Board of Engineers against De Otero and others.

Mrs. De Rodon?

Ms Miriam Naveira De Rodon: Mr. Chief Justice and may it please the Court.

This case comes up before this Court on an appeal from a decision of a Three-Judge District Court in Puerto Rico which in a divided opinion declared unconstitutional the citizenship requirement of Section 689 of Title XX of the Laws of Puerto Rico annotated.

The pertinent part is printed in italics on page 10a in following of the jurisdictional statement.

Appellees are resident aliens who applied to the Examining Board of Engineers in Puerto Rico for Registrations as Licensed Engineer even though -- and even though they were non-citizens they did not attempt to establish their eligibility under Section 689 by demonstrating that they had studied the total courses in Puerto Rico.

The Examining Board denied them the application and appellees, instead of availing themselves of the review established by law in Section 701, immediately repaired to the Federal Courts and applied under the jurisdiction of the Civil Rights 1983 and its jurisdictional counterpart 1343.

It should be noted that Section 689 has never been construed by the Local Courts.

Under the Courts of Puerto Rico are courts of general jurisdiction empowered to grant all remedies which can be granted by the Federal Courts and or course that review can finally be granted to this Court.

Appellees are at present, as far as I was able to ascertain, working for the government of Puerto Rico or its municipalities under a special license as provided by Section 689 of that very same law.

This case is of the utmost importance to the Commonwealth of Puerto Rico and it has great significance because it raises two very important issues to us.

Whether Section 1983 of the Civil Rights Act and its jurisdictional counterpart, Section 1343 are applicable to Puerto Rico and second, whether the District Court should have abstained from passing upon the interpretation and validity of a statute which had never been construed by the Commonwealth Courts.

Justice William H. Rehnquist: Is there also a question of whether the Fourteenth Amendment applies to Puerto Rico?

Ms Miriam Naveira De Rodon: Well, neither this Court nor the Circuit Court nor the District Court has ever found it necessary to determine whether the Due Process of the Fourteenth or the Fifth Amendment is applicable since it found that the fundamental rights of the constitution are applicable to the people of Puerto Rico and we think that that is the best way not to specify.

Justice Potter Stewart: But you do?

Ms Miriam Naveira De Rodon: Yes.

Justice Potter Stewart: You do concede that either the Fourteenth Amendment or the Fifth Amendment is applicable to the people of Puerto Rico and that the net result is the same whichever?

Ms Miriam Naveira De Rodon: Yes sir.

Justice Potter Stewart: That is the due process clause of the Fourteenth Amendment?

Ms Miriam Naveira De Rodon: Yes.

Justice Potter Stewart: And that the Due Process Clause of the Fifth Amendment also embraces the concept of equal protection?

Ms Miriam Naveira De Rodon: Yes sir.

It should be noted that at present, the misuse of Section 1983 and its jurisdictional counterpart, 1343 in the Federal District Court of Puerto Rico has literally flooded the Court with all conceivable types of cases in which every facet of government action and decision making, whether major or minor is being questioned to the point where there is a real question as to who is really running the government.

Justice William H. Rehnquist: Is that different then from the 50 States of the Union?

Ms Miriam Naveira De Rodon: I believe so sir because in Puerto Rico, the civil rights actions that are being filed are not being filed, let us say like in the prisoner’s cases or in racial discrimination cases or in certain definite type of cases.

In Puerto Rico, they cover every government facet.

For example, I will give you an example.

The removal of employees, the approval of probationary periods, the transfer of employees, the disciplinary actions instead of going through the administrative processes available in law, they will repair to the Federal Court.

The Federal Court will assume jurisdiction and there will be a trial of complete -- this thing will be seen in the Federal Court.

If the government announces of a policy that it plans to drill oil in the outlying skirts or that it plans to mine copper, immediately we get an action in Federal Courts and the court does assume jurisdiction and the whole procedure goes on. And I think that if one examines the types of action that are being filed, one finds that there is definitely a difference between the 50 States and Puerto Rico.A

ppellees invoked the District Court’s jurisdiction, solely on the basis of Section 1343 and Section 1983 of the Civil Rights Act and we submit that neither apply nor were intended to apply to Puerto Rico.

Our arguments are based on the Carter case which was decided by this Court and declared the neither Section 1983 or it jurisdictional counterpart, 1343 were applicable to the District Court of Columbia.

Now, in the case of the Commonwealth as well as in the case of the District of Columbia to determine whether a statute is applicable, one must examine not only the words, but also the context, the purpose and the circumstances in which the words are being used.

Sections 1983 and 1343 have their roots in the Ku Klux Clan Act of 1871 when it was first enacted to cover just dates.

It was not until 1874, when the substantive measure, that is when 1983 was amended to include territories.

No such amendment was made to the jurisdictional part.

It was in 1875 that the District Courts got general jurisdictional over Federal questions and it was until 1898 that the United States acquired Puerto Rico after the Spanish-American War.

Ever since the very beginning, in the Insular Cases, Puerto Rico has been considered an unincorporated territory not intended for statehood and this Court in Carter said when expressing its view on the territories covered by Section 1983 that they were applicable to territories in a transitory nature in the process of becoming a state.

In 1952, the people of Puerto Rico and the people of the United States enter into a compact and thereby created a new sovereign entity with the the Federal political structure, the Commonwealth of Puerto Rico.

Now, as stated in Carter, the Section 1983 was designed to apply to states and to territories which were in the process of becoming a state. Puerto Rico is neither.

Furthermore, the conditions upon which Section 1983 had intended to correct whenever present in Puerto Rico, the courts of the island have always been able and willing to vindicate the civil rights of individuals and have the power and the procedural mechanisms to grant all remedies that may be granted by Federal Courts.

We submit that in the absence of a more definite guidance from Congress, Section 1983 and 1343 should not be held applicable to the Commonwealth of Puerto Rico.

On the abstention question, we think that this Court in Calero-Toledo case rendered an abstention doctrine which was quite wide and liberal for the Commonwealth.

Citing from the Wock (ph) and Hawk opinion it stated, “do you regard to the statutes of the Commonwealth under its compact to the United States dictate that it should have the primary opportunity through its courts to determine the intended scope of its own legislation and to pass upon the validity of that legislation under its own as well as under the constitution.”

Unknown Speaker: (Inaudible)

Ms Miriam Naveira De Rodon: Yes.

Unknown Speaker: If you fail on the first?

Ms Miriam Naveira De Rodon: Yes, of course the only alternative.

In this case where the statute and question has never been construed by the courts of Commonwealth and where it may very well be interpreted in such a way as to avoid the constitutional question, abstention with it would be very appropriate.

Section 689 does not contain an absolute prohibition against non-citizens obtaining licenses.

What is meant by total courses has never been interpreted by the Supreme Court of Puerto Rico and could very well be interpreted to mean courses directly related to the peculiarities of a poor, overpopulated small tropical island, subject to such tropical hazards as earthquakes, hurricanes and flash floods.

The Supreme Court of Puerto Rico has been reluctant to attribute to the legislature an intention to pass a statute raising constitutional problems, especially when the legislative intent is not clear as in this case where there is practically no legislative history to go upon.

It should also be noted that the constitution of Puerto Rico contains besides a general equal protection clause, a specific prohibition against discrimination on account of race, color, sex, birth, social origin or condition or political or religious ideas.

If a statute does not measure up to these constitutional principles and standards, the courts do not have to reach the federal constitutional question.

As was recognized by this Court in the Calero-Toledo case, the relationship between the United States and Puerto Rico has been the object of numerous debates in international forums, especially in the United Nation where the creation of a Commonwealth in 1952, prompted the United States to seize transmitting information concerning Puerto Rico under Article 73(c) of the Charter which deals with non-self governing territories, thus recognizing that a new sovereign entity had been created within the constitutional structure.

Whether Puerto Rico has true internal self government is debated still in the international community, especially by the Third World.

Thus, that this be so, in fact, as well as in theory is important to both the United States and Puerto Rico.

We submit, therefore, that the abstention in this case and the case of Puerto Rico is especially appropriate and in accord with the compact between the United States and Puerto Rico and with the difference that this Court has always shown to the courts of the Commonwealth.

As this Court rightly pointed out in the Fornaris case, the relations of the Federal Courts to Puerto Rico have often raised delicate problems.

This is especially true today, when the misused of Section 1983 and 1343 has produced a fantastic increase in a number of cases filed in the Courts of Puerto Rico and has led to an ever increasing intervention of the Federal Judiciary into practically all aspects of governmental functioning and even minor decision making.

But even more disturbing than all this is the fact that federal juries had been handing down incredibly high amounts of damages in cases of this kind.

For example, they awarded $250,000.00 in damages in a case involving the removal of a local government employee where a violation of Due Process was alleged based on a Federal Court’s interpretation of a local statute which had never been construed by the Supreme Court of Puerto Rico.

This case --

Justice William H. Rehnquist: Were those compensatory damages or punitive damages?

Ms Miriam Naveira De Rodon: They -- it divided.

In compensatory, they granted a $100,000.00 in actual damages and I think $150,000.00 in punitive damages.

This case is actually on appeal before the First Circuit.

It should be borne in line that the language requirement of Federal Jury service in Puerto Rico makes the Federal Jury a very selective one for a large portion of the island's inhabitants are not sufficiently bilingual as to enable them to qualify for jury service, Spanish being the native tongue.

Under Section 1983 and 1343 as I have already told this Honorable Court, some purely local matters are taken before the court and the court does assume jurisdiction.

All these cases which I am talking about are normally taken directly to the Federal Courts bypassing the administrative procedures available and the local courts.

We even have the situation where those cases which are pending, applications for dismissal are made and people repaired to the Federal Court.

No allegation is made that the administrative or local procedures are inadequate.

It is just that they prefer the Federal Court.

The congestion of the court calendar that has not sued has made it necessary sometimes to set cases for Saturdays and for after 5 o’clock during the week.

We have had cases which have lasted until after midnight.

Justice William H. Rehnquist: Mrs. De Rodon let me asked you if I may about the language in which the Federal Court Proceedings are conducted and then the language in which the Commonwealth Court Proceedings are conducted?

Ms Miriam Naveira De Rodon: Yes, the Federal Court Proceedings are all conducted in English.

The Local Court Proceedings are all conducted in Spanish save if the right of the individual before the court would be put in jeopardy then they are carried on in English.

Justice William H. Rehnquist: Well, then that put certainly at a disadvantage many lawyers, I suppose who represent clients who speak only Spanish and who are brought into the Federal Court?

Ms Miriam Naveira De Rodon: Well, the Federal Bar in Puerto Rico is also very selective.

You find that there are few lawyers who practice in the Federal Bars in contrast with the amount of lawyers that practice in the local bar and not always by choice, but because of great difficulty in the language.

We have had a bill pending before Congress to try to remedy that, but still the proceedings have to be conducted in English and this especially, if the Court will pardon me the digression, this is especially sad in the case where you have a criminal or a person, an accused person before the court who speaks no English and you have to have translators where everybody in that court speaks Spanish, yet you have to go through the role of translating something that everybody understood in the original language anyway.

Unknown Speaker: I supposed that you are confined to Puerto Rico and yet I supposed we have to think, if we were to decide in your favor, the possible application of it to Guam, the Virgin Islands and others, do you have any comment on that?

Ms Miriam Naveira De Rodon: Well, I think that as the test is that you should analyze the situation in each case in particular and find out if the same situations that are in Puerto Rico would be in Guam or the Virgin Islands in order to determine whether they would be in the same position as we are and the decision should be the same.

That would have --

Justice Thurgood Marshall: (Inaudible), is not?

Ms Miriam Naveira De Rodon: Excuse me?

Justice Thurgood Marshall: The 53 Act or whatever it is, Puerto Rico is different from any other one?

Ms Miriam Naveira De Rodon: Yes, after the 1952 Act, Puerto Rico has the only commonwealth position within the Federal structure, yes, that is true.

There is none other like it.

Actually -- yes?

Unknown Speaker: Are you familiar with our decision in the Bivens Case?

Ms Miriam Naveira De Rodon: Excuse me?

Unknown Speaker: Are you familiar with our decision in the Bivens Case?

Ms Miriam Naveira De Rodon: I have to refresh my memory, I do not.

Unknown Speaker: Well, I just wondered that was the case in which we dealt with the possibility in the District of Columbia, notwithstanding 1983 does not apply to the District Columbia course because it is not a state or territory within 1983, there might nevertheless perhaps be an action for alleged deprivation of constitutional rights in the Federal Courts of the District without reference to 1983?

Ms Miriam Naveira De Rodon: Yes.

Unknown Speaker: Did you consider that?

Ms Miriam Naveira De Rodon: No, I did not Your Honor, I am sorry.

I would like to finish by stating.

I think the Court should be aware, at present we have a 106 cases filed and pending against Commonwealth Officials in the Federal Courts and about 80 to 85 of these are predicated in Section 1983 and 1343.

These cases cover as I told you not just a few phases, but ever phase of government action that could be imaginable.

I think the Commonwealth is advocating that the invasion into the Commonwealth Governmental functions by the Federal Judiciary is not only having an undesirable, paralyzing effect on government officials due to the extraordinarily high awards that are gotten in Federal Courts, but it is also causing a traumatic damage into the relations of Puerto Rico and the United States.

And I think that as this Court has already indicated in the Wock (ph) and Hawk and the Calero-Toledo case and we agree the doctrine of abstention for Puerto Rico should be liberally construed and applied and we submit that in this case, the District Court should have abstained.

Unknown Speaker: The compact of 1952, was it not?

Ms Miriam Naveira De Rodon: Yes, in 1952.

Unknown Speaker: Do you think prior to 1952 and subsequent to 1917 the citizenship was granted, do you think 1983 was applicable then?

Ms Miriam Naveira De Rodon: Well, 1983 like I said before, the conditions which it was intended to correct whenever present --

Unknown Speaker: I know, but you are also relying in part on the compact?

Ms Miriam Naveira De Rodon: Yes.

Unknown Speaker: And I am just trying to go back to the pre-compact days and wonder whether the situation would be any different without the compact to rely on?

Ms Miriam Naveira De Rodon: Well, as to the jurisdictional because 1343 was never amended to include territories, it just included states and that was approved under the Fourteenth Amendment.

I do not think it never intended to cover territories.

In 1875, it was that the Federal District Courts -- General Federal question jurisdiction and in the Relations Act, the Foraker Act, and the Jones Act and the Federal Relations Act that have applied Puerto Rico and then have a clause concerning the District Courts of Puerto Rico, they mentioned that the District Court of Puerto Rico has the same jurisdiction as courts in the United States, but if territories were not included as part of 1343, then that would not have made it applicable, they would have to go on under the General Federal question jurisdiction.

Thank you very much.

Chief Justice Warren E. Burger: Mr. De Arellano?

Argument of Max Ramirez De Arellano

Mr. Max Ramirez De Arellano: Mr. Chief Justice and may it please the Court.

Before I enter into my argument proper, I would just like to make two comments on Mrs. De Rodon’s introduction.

First of all, in the matter of no showing of eligibility, the fact is and this is a fact in both these cases that these plaintiffs are completely eligible for unconditional licenses as engineers, except for the requirement citizenship, they have met every single other requirement under Section 689 of Title XX.

Secondly, the matter of the multiplicity of Civil Rights actions in Puerto Rico, I think that is a wonderful thing, not a terrible thing. It shows I think her statistics show and prove the great need in Puerto Rico for the statute.

Chief Justice Warren E. Burger: The need for burden to do with the jurisdiction, is that so?

Mr. Max Ramirez De Arellano: That is true.

In any case, though I think this Court is faced with a constitutional question of the first order, the effect of denying -- of accepting the Commonwealth's argument in this case is to deny the 3 million citizens of the United States' resident in Puerto Rico, coverage under the Fourteenth Amendment, that is denial against violations of the rights protected by the Fourteenth Amendment of the United States.

Unknown Speaker: But we already, I mean, 1983 is inapplicable at Puerto Rico?

There is not any other source of jurisdiction substantively -- of the substantive right in the District Courts?

Mr. Max Ramirez De Arellano: Only it will have to be under the Fifth Amendment of the Constitution of the United States.

Unknown Speaker: What about our Bivens decision?

Mr. Max Ramirez De Arellano: I am not familiar with the decision, Your Honor.

Justice Byron R. White: Well what about the proceeding under 1331 as long as you can allege $10,000.00?

Mr. Max Ramirez De Arellano: As a Federal question, yes.

Well, that is where the First limitation is the jurisdiction of amount of course.

Justice Byron R. White: Well that was -- but it is satisfied in this case, is it not?

Mr. Max Ramirez De Arellano: It might be.

The Solicitor General in his briefs thinks that --

Justice Byron R. White: Do you think that if you do not prevail in this case, if you lose this case, would you think it would mean that you could not proceed under 1331?

Mr. Max Ramirez De Arellano: I think, I could Your Honor, yes.

Justice Byron R. White: You think you could proceed and if you can satisfy the jurisdictional amount requirement, you could sue government officials under 1331?

Mr. Max Ramirez De Arellano: Raised in a Federal question, yes.

Justice Byron R. White: Well, it is --the constitutional question is fairly Federal, is it not?

Mr. Max Ramirez De Arellano: Of course.

Justice William H. Rehnquist: Does the argument you were making a moment ago suggest that there was some constitutional problem if Congress chose to exclude the Puerto Rico from the ambit of 1983 or 1343?

Mr. Max Ramirez De Arellano: No, no.

The Court is faced with a matter of statutory interpretation, yeah, but the scope of Section 1983 because the Fourteenth Amendment as I understand it, it does not apply per se to the territories.

It was applied to territories in 1874 through Section 1983.

The main contention of the Commonwealth in this case is that under this Court’s decision in District of Columbia versus Carter, there is no jurisdiction under Section 1334.

They try to raise a syllogism in this case.

They say that the District of Columbia was found to be Sui generis in the constitutional scheme and that Puerto Rico is Ejusdem Generis in the constitutional scheme.

They say under the Carter, the Civil Rights Act was found not to apply, therefore, it does not apply in Puerto Rico. I think this is a false syllogism.

In Carter, this Court was also faced with a matter of statutory interpretation.

What was the scope of Section 1983?

In trying to find this scope, it went back to the old case of Puerto Rico versus the Shell Company where it stated that it was the character and aim of a statute which serves to define the terms of the statute, specifically in Carter the scope of the term state or territory and the court asked, what was the purpose of the 1874 Amendment to Section 1983?

And it found that it was the intent of Congress when it amended the Civil Rights Act to extend the Fourteenth Amendment protection to the territories acting under Article 4 of the Constitution of the United States, territorial power.

The reasons for this, that is like reasons for Congress in passing this amendment were that it had experienced certain difficulty in controlling what were then far flung territories and Congress had delegated some of its lawmaking powers to territorial legislators.

Therefore, these two factors combined to make the territories more like states in so far as problems of Civil Rights jurisdiction were concerned.

Therefore, they equated territories with states in so far as Section 1983 was concerned. The District of Columbia on the other hand in that case was found to be under the direct control and supervision of Congress.

It is the seat of national government.

Therefore, the reasons that Congress had in extending Fourteenth Amendment protection to the territories did not exist in the case of the District Columbia.

Justice William H. Rehnquist: So, would it be your position then that 1983 would not have applied to Puerto Rico up until 1952, but afterwards it did?

Mr. Max Ramirez De Arellano: No, on the contrary, under Shell Company, it would have to have apply, it would have have -- would have been held to apply had the issue been raised to pre 1952 Puerto Rico.

I do not think there can be any doubt about that.

Justice William H. Rehnquist: Well, did the Congress not -- when did Congress lose its general authority to legislature of Puerto Rico?

Mr. Max Ramirez De Arellano: My contention is that it has not.

Justice William H. Rehnquist: Well, then why is it not governed by District of Columbia versus Carter?

Mr. Max Ramirez De Arellano: Because Puerto Rico in 1952 gained a certain amount of autonomy and it is this autonomy which has made it more like a state.

Justice William H. Rehnquist: But I thought that certainly one of the tests in Carter was the fact that Congress would not have wanted to give a special cause of action in Federal Courts to people whose grievances could be corrected by Congress itself and I would take it that would be true in case of Puerto Rico, if Congress has still has general legislative authority?

Mr. Max Ramirez De Arellano: Well, it is true in any of the territories.

In other words, Congress can act in Puerto Rico under Article 4 and correct whatever grievances it may think need correcting.

This is both before and after 1952.

Unknown Speaker: Does Calero help you (Inaudible)?

Mr. Max Ramirez De Arellano: Yes, Calero-Toledo recognized or that in amending Section 1983, Congress was acting under Article 4, but except in that same footnote it states that it was not necessary in that case to decide whether it was the Fifth or Fourteenth Amendment which applied to Puerto Rico.

Justice Byron R. White: Is that the case that deals with the statutory (Inaudible)?

Mr. Max Ramirez De Arellano: Yes, for the purposes of Three-Judge Court jurisdiction as each of these appellate statutes is treated separately and differently by this Court.

So to get back to Mr. Justice Rehnquist’s question if I may, in applying Shell Company to Puerto Rico at the present time, we find the Puerto Rico is autonomous as to local matters. There is no direct control as a practical matter right now by Congress.

There is no day-to-day supervision the way there is here in the District.

Therefore, Puerto Rico is the type of place where Congress wanted Section 1983 to apply when it amended it.

Justice William H. Rehnquist: You think that since Congress granted the District Home rule a year ago or two years ago, the result should now be different in Carter?

Mr. Max Ramirez De Arellano: I do not know how far home rule goes or whether there are any actual actions, I am not familiar with home rule at all.

Chief Justice Warren E. Burger: Well, they have independent courts just as Puerto Rico does.

They do not have senators or congressmen as Puerto Rico does not.

There are certain similarities, are they not?

Mr. Max Ramirez De Arellano: Yes, but still there is a question that this is the seat of the national government. It is a place created by the constitution itself.

I do not think that Puerto Rico can be equated with the District of Columbia in the constitutional scheme.

They both may be unique, but it is a different type of uniqueness.

Unknown Speaker: I gather your submission is that Puerto Rico remains a territory within the meaning of 1983, even the Commonwealth Act I gather, constitutionally has its source in the authority of Congress to regulate the territory?

Mr. Max Ramirez De Arellano: The committee reports to Public Law 600 specifically so stated.

They stated that this Public Law 600 was a further act in the administration of territories under Article 4 of the constitution.

So the question is whether after 1952, Puerto Rico became any different as regard to Section 1983.

Chief Justice Warren E. Burger: I think there are, whatever the differences are between the District of Columbia and Puerto Rico. Is Puerto Rico not more independent and unique than the District of Columbia as compared with other states?

Mr. Max Ramirez De Arellano: I was going to say it was more like a state than it is like the old-time territories.

Chief Justice Warren E. Burger: Well, it does not have representation in the Congress?

Mr. Max Ramirez De Arellano: There is a resident commission --

Chief Justice Warren E. Burger: Well, do you have a vote -- do you vote in Federal Elections?

Mr. Max Ramirez De Arellano: No sir.

Chief Justice Warren E. Burger: District of Columbia, people do?

Mr. Max Ramirez De Arellano: Because the constitution so provides.

Chief Justice Warren E. Burger: Only very recently.

Is there not much more reason for Puerto Rico to maintain autonomy of traditions and customs and culture --

Mr. Max Ramirez De Arellano: That is all very fine -- I am sorry.

Chief Justice Warren E. Burger: -- than the District of Columbia for example?

Mr. Max Ramirez De Arellano: Yes, as long as the Commonwealth Government does not start impinging on rights guaranteed by the Constitution of the United States.

That is as far as they can go and that is how far as any state can go, as far as any territory go, that is as far as the District of Columbia can go.

I do not think Puerto Rico has the right to go any further than the District of Columbia than the Federal Government or than any other state or territory?

Justice William H. Rehnquist: Well, if we held otherwise in Carter, at least the courts under which the state -- district respondent would have been brought via Federal Court would have been one that presented no language problem, now I certainly concede that you do not use that as a test for deciding whether the statute applies, but if you are thinking of the matter as rather closely balanced, it does strike me that the Federal Court down there may be fairly inhospitable to people who do not speak the language in which it is conducted?

Mr. Max Ramirez De Arellano: Your Honor, the language problem is the same for everybody before the Court, both plaintiffs and defendants.

Second, I do not think the proper solution to the language problem would be to say that there are no more civil rights in Puerto Rico.

The solution is to say, well, let the District Court in Puerto Rico conduct its proceedings in Spanish.

Now it is my contention, the contention of plaintiffs in this case that after 1952, if anything Puerto Rico became more like a state than anything else.

I should point out that since 1952, not a single Federal Statute that had been held to apply to Puerto Rico before 1952 has ever been held inapplicable to post 1952 Puerto Rico.

In other words, to hold now that Section 1983 does not apply would be the first time that this Court or any court as far as I know has held that a Federal Statute applicable to pre 1952 Puerto Rico is inapplicable to post 1952 Puerto Rico.

Going back again, also to the Shell Company Case, we have to find -- we have to look at the intent of Congress in 1952 when it granted Puerto Rico the power to draft its constitution.

I think it is quite evident that Congress was very concerned that the constitutional rights, United States Constitutional rights be preserved in Puerto Rico.

After 1952, the joint resolution approving the constitution of Puerto Rico provided that the constitution would not go -- enter into effect unless it conformed with the applicable provisions of the constitution of the United States.

Section 2 of the Federal Relations Act which was continued in effect by Public Law 600, equates Puerto Rico with the state of the union in so far as the rights, privileges, immunities of its citizens are concerned.

It is interesting that this is the same language used in Section 1983.

When Congress was studying the proposed constitution, it required an amendment to the proposed Article 7 to the effect that the applicable -- that no subsequent amendment to the Puerto Rico Constitution would be passed that did not conform to the applicable provisions of the United States Constitution.

The conference report to Senate, 3336 which later became Public Law 600, stated that this matter that is that the proposed Puerto Rico Constitution and Public Law 600 would be a “Fundamental contribution to the art and practice of the government and administration of territories under the sovereignty of the United States.”

In other words, Public Law 600 in the constitution of Puerto Rico are merely a further step in the administration of territories under Article 4 of the Constitution of the United States.

Finally, on this point, it is also clear from the legislative history surrounding Public Law 600 that the changes brought about by the law where only matters of “purely local concern,” this is a quote from the committee report to Public Law 600.

So in concluding on this point, the argument of the Commonwealth that leads to the conclusion that Congress advocated its responsibility under Article 4 that it just withdrew Section 1983 protection from post 1952 Puerto Rico is contrary to all the legislative history surrounding Public Law 600.

Now, if this Court finds that Puerto Rico is a state or territory within the meaning of Section 1983, then the substantive matter presented to the Court or in this case, like some of it has already been decided by the case of In re Griffiths, nevertheless, the Court, I mean, Commonwealth is arguing that it is entitled to a broader or more liberal test regarding its justification for the discrimination against aliens.

I should point out that the discrimination here is not against just these plaintiffs.

It is not a personal discrimination.

It is an across the board discrimination.

The justification presented by or the reasons why the Commonwealth thinks it should be entitled to a broader test or more liberal tests is first of all because of its special position or rather because it is different from the state or the union and second because of the specific factual situation existing in present day Puerto Rico.

On the first point, the position of the Commonwealth, it is my contention that constitutional uniqueness or uniqueness under the constitutional scheme or in the constitutional scheme is not the same as exemption from the requirements of that constitutional scheme.

The test of a justification should not be the position of the governmental authority imposing the discrimination, but rather the effect of that discrimination on the person being discriminated against.

The aliens in this case do not care whether, I do not know, the Federal Government or a territorial government or the government of something called the Commonwealth of Puerto Rico that is denying them equal protection of the laws, they are still being denied equal protection of the laws and the effect is that they are being denied their right to work, to exercise a profession solely because they are aliens.

In their brief, the Commonwealth cites or refers to general unemployment figures in Puerto Rico, but it does not cite what it should cite which is the unemployment figures for engineers in Puerto Rico.

They do not cite general per capita income, I mean, they do cite general per capita figures, they do not cite per capita income figures for engineers.

The reference to illegal immigration I believe is completely irrelevant.

No showing was made that immigration tends to be among professionals or engineers or any a thing of the sort and I am sure this Court will agree that no such showing could probably be madeParenthetically, the Commonwealth in its brief seems to say on page 20 that the states have the right to regulate what they call the influx of aliens through their boarders.

I submit that this is incorrect, going back at least as far as Hines versus Davidowitz in 1941.

On a matter of employment or engineers in Puerto Rico just 10 days ago, the President of the University of Puerto Rico, Dr. Arturo Morales Carrion was quoted in an interview in a local newspaper to the effect that in his opinion the orientation of education at the University of Puerto Rico should change from what it has been in the future and is now from liberal arts towards sciences and engineering because Puerto Rico needs people trained in Sciences and Engineering.

There is a lack of this type of training in Puerto Rico and the whole university orientation should shift toward this type of training.

Unknown Speaker: What do you think what purpose would be served -- I gather this statute is not checked in before your Supreme Court, has it?

Mr. Max Ramirez De Arellano: That is correct.

Unknown Speaker: Would it serve any purpose in light of the issue that has involved in the constitutional issue to send it to that court?

Mr. Max Ramirez De Arellano: I do not think so Your Honor.

There is nothing that needs to be interpreted --

Unknown Speaker: I gather what the interpretation, I gather to satisfy you would have to be that aliens are not subject to the --?

Mr. Max Ramirez De Arellano: That is right.

There is no question but that this statute Section 689 applies to aliens.

It says if you are an alien, you cannot get a license.

Unknown Speaker: There is no way can we construed not to apply?

Mr. Max Ramirez De Arellano: Either you are an alien or you are not and either it does or does not apply to aliens and it says it does.

There is nothing left there for Supreme Court --

Unknown Speaker: There is not like the Fornaris statute?

Mr. Max Ramirez De Arellano: Where you had a vague statute.

Nobody knows what is just cause, nobody knew then, nobody still knows what just cause means?

Unknown Speaker: So I understand.

Mr. Max Ramirez De Arellano: The co-compelling state interest put forth by the Commonwealth here boils down to denial of employment to aliens for the sole reason that they are aliens.

This is abundantly evident in the committee report to the amendment to the engineering statute.

The committee reports said that other countries have requirements similar to the requirement being considered in this amendment, that is they require that people coming to work in these other countries be citizens of the country and that the purpose of the amendment wants to conform the law of Puerto Rico to the law of these other countries.

That is the only reason put forth in the Committee Reports on the amendment for the amendment itself.

The matter of Civil Code responsibilities were used by the Commonwealth in their brief is also false issue.

If we look at the statute we find that aliens who receive their education in Puerto Rico are entitled to unconditional licenses.

Yet the Commonwealth forgets these aliens are just as free to live Puerto Rico as our aliens who have studied elsewhere.

The same is true as to United States citizens who have received their educations in States or the Union.

They also are entitled to unconditional licenses.

The statute contemplates reciprocity agreements between Puerto Rico and the States of the Union.

These United States citizens from other states are just as free to live Puerto Rico in case of trouble as our aliens who have studied elsewhere.

I cite the case of Empresas Capote versus Superior Court in my brief.

In this case, there involved a question of the meaning of the term contractor in the Civil Code Chapters concerning Civil Responsibility for construction defects.

The Supreme Court stated -- the Supreme Court of Puerto Rico stated that the term contractor is not limited to professional engineers or architects.

It means anybody who has promised to produce a certain result or to render a certain service and the fact is that in Puerto Rico there are very many people who practice the professional as I might call as that of contractor, that is they put up buildings, they put up whole buildings and they are not engineers.

If we are going to require some contractors to be citizens and others not, I understand there is a violation of Due Process of the law, excuse me, of equal protection.

In summary, if I may, in borrowing the abstention question, this Court I think has three courses open to it in this case.

It can affirm the judgment in the District Court, state that Section 1983 applies and that is the Fourteenth Amendment.

Secondly, it can state that only the Fifth Amendment applies to Puerto Rico.

However, this I think would have the effect of equating Puerto Rico with an old time territory, subject to direct control by Congress under Article 4 and limited then by the Due Process Clause of the Fifth Amendment.

I do not think that even the Commonwealth would have agree to go this far or it can determine that neither the Fifth nor the Fourteenth Amendment applies.

This I think would result in I think intolerable constitution vacuum in Puerto Rico because it would be the same as saying that Puerto Rico is independent country which is not.

It would be the same as saying that U.S. citizens residing in Puerto Rico are in the same position as your citizens residing in say France.

Finally, the Commonwealth request that if the Court finds that Section 1983 does not apply, oh! No that is my argument.

Justice Potter Stewart: There is no real discussion of these questions in the District Court?

Mr. Max Ramirez De Arellano: No there is not.

All this was raised before this Court.

Justice Potter Stewart: I suppose the reason is that these are all that thrush out in the District Court and then the First Circuit and that the law had been established in your favor, is that correct?

Mr. Max Ramirez De Arellano: There are several cases in the District Court that are already decided the same point against the Commonwealth.

Justice Potter Stewart: May I ask you one more question?

I forgot that you are responsible for this, but maybe you can at least clarify.

I have before me two copies of what this label of brief for the United States as amicus curiae, both seem to have been filed on November 29, 1975, one has a gray color and one has a white color, do you have any explanation for that?

Mr. Max Ramirez De Arellano: I have only seen the one with white cover.

Justice Potter Stewart: Are they the same thing.

Mr. Max Ramirez De Arellano: I have never seen the gray one before, I do not know.

Justice Potter Stewart: Thank you.

Chief Justice Warren E. Burger: Do you have anything further?

Rebuttal of Miriam Naveira De Rodon

Ms Miriam Naveira De Rodon: May it please the Court.

I was told by the Solicitor General that it had typographical errors and that is why they had it printed again.

I asked the question on the two and that is the answer the Solicitor General gave.

Justice Potter Stewart: So which is the corrected copy then?

Ms Miriam Naveira De Rodon: I think it is the gray one because I got the one with the typographical error the white one and I was told that they were going to print it again.

Justice Potter Stewart: Thank you very much.

Ms Miriam Naveira De Rodon: I wanted to just to clarify a few points.

We do not agree with the fact that the statute is absolutely clear.

The Commonwealth Courts have not had the opportunity of interpreting what is meant by how sturdy the total course, whether this means to have gone through the three years of University in Puerto Rico, whether these are topping of courses necessary to practice engineering Puerto Rico, this has never been interpreted.

My colleague interpreted to me the whole three years in Puerto Rico, I do not know how the Supreme Court of Puerto Rico would interpret that case in particular whether it is speaking about going through the entire university or just some specific courses which would qualify the alien to practice law in Puerto Rico to unique circumstances of Puerto Rico itself.

I would also like to clarify that we are not alleging or contending that the Federal Constitution does not apply to Puerto Rico and that the Federal Constitutional rights are not applicable to individuals in Puerto Rico.

We are just contending that Section 1983 and 1343 are not applicable which is a statutory construction.

Justice Byron R. White: What about 1331, Federal Questions Jurisdiction?

Ms Miriam Naveira De Rodon: I think specifically Puerto Rico is mentioning 1331 specifically as applicable and I think is.

Unknown Speaker: Well, that was not a jurisdiction not here?

Ms Miriam Naveira De Rodon: Excuse me?

Unknown Speaker: Then was it not a jurisdiction in this case, under 1331.

Ms Miriam Naveira De Rodon: They did not allege 1331 in the lower court.

Possibly there could have been.

No.

Justice William H. Rehnquist: The alleged $10,000.00 in dispute?

Ms Miriam Naveira De Rodon: No.

Justice William H. Rehnquist: Well, then there was in 1331 jurisdiction?

Ms Miriam Naveira De Rodon: No, they did not make any allegations except 1343 in their jurisdictional basis --

Justice Byron R. White: What about in this stage of litigation?

How much damages were awarded?

Ms Miriam Naveira De Rodon: Nothing.

Justice Byron R. White: What is involved in the case?

Ms Miriam Naveira De Rodon: In the constitutionality, I mean the declaratory judgment in the constitution, statute was one of the complaints --

Justice Byron R. White: So no one knows how much?

Ms Miriam Naveira De Rodon: No and these people are working with the government so I really do not know how much damages if any, could be -- if it is $10,000.00 I cannot determine.

Unknown Speaker: Well, does it say so in the complaint?

Ms Miriam Naveira De Rodon: Yes, it does.

Unknown Speaker: It was clear?

Ms Miriam Naveira De Rodon: Yes, it does say so.

Thank you very much.

Chief Justice Warren E. Burger: Thank you.

This case is submitted.

Attribution:

The OYEZ Project

Featured:

Hampton v. Mow Sun Wong - Oral Argument

Thu, 23 Aug 2012 18:25:58 +0000

Case:

Hampton v. Mow Sun Wong

Media File:

73-1596_19750113-argument.mp3

Related Transcript:

73-1596_19750113-argument

Transcript:

Argument of Bork

Chief Justice Warren E. Burger: We'll hear arguments next in 73-1596, Hampton against Mow Sun Wong.

Mr. Solicitor General, I think you may proceed.

Mr. Bork: Mr. Chief Justice, may it please the Court.

We are here on writ of certiorari to the Ninth Circuit.

Respondents are four aliens who have been denied employment in the federal competitive civil service by a reason of the Commissions -- Civil Service Commission's regulation requiring that applicants from most positions be either citizens of United States or persons owing it allegiance.

Respondents filed the class action challenging the regulation on constitutional on other grounds.

The District Court on the government's motion dismissed the action for failure to state a claim.

The Court of Appeals reversed holding that the regulation violates the Equal Protection component of the Due Process Clause of the Fifth Amendment.

The Court said that alienage is a suspect to classification so that the compelling governmental interest must be shown they justified treating aliens differently than citizens with respect to federal employment.

The Court of Appeals relied we believed mistakenly on the rational of this Court's decisions in Sugarman versus Dougall and Graham against Richardson.

Those cases concerned of course state restrictions on the eligibility of the aliens for state employment and state welfare benefits.

It is our contention that the Civil Service Commission's regulation is a valid exercise in the national power and I reached that result in alternative ways.

My first submission is that the Equal Protection principle has no application to the federal governments dealing with aliens as aliens.

It has application of course to the other capacities.

I wish to be quite clear about this.

The Equal Protection principle applies to persons who are aliens and it protects them from a variety of inequalities such as inequalities imposed on the grounds of their race or religion.

But the Equal Protection principle does not apply we think to a pure alienage classification such as that before us.

Justice Potter Stewart: Is the Equal Protection principle of the Fifth Amendment Due Process Clause, in other words, when is the federal government that's making the classification?

Mr. Bork: That is entirely correct Mr. Justice Stewart when it is valid.

Everything I am talking about now is in the federal context and I am at some pains to point out what apparently has not been fully understood by respondents that we are not saying that the Equal Protection principle does not apply against the federal government to a person who is an alien and of course it does.

We're only saying it does not apply to in his capacity as alien.

It may apply to his capacity whether it's race or religion or sex --

Justice Potter Stewart: Or age?

Mr. Bork: -- or age or some any other way in which the Equal Protection principle applies and of course other constitutional protection supply to aliens.

So, we're not contending any such to make any broad claim.

The reason we think that the Equal Protection component of the Due Process Clause of the Fifth Amendment can apply it's because of the plenary powers of the national sovereign with respect to alienage.

Our Constitution does not forbid alienage classifications.

On the contrary, the Constitution requires the federal government though not the states to employ alienage classifications.

Now, my alternative submission will be that at most the Equal Protection Clause principle has a very attenuated application to distinctions between citizens and aliens when those distinctions are made by the federal government.

To employ the compelling governmental interest standard as the Court of Appeals did is I think effectively to destroy the distinction between citizens and aliens contained in the Constitution or much of it and certainly to destroy much of the great mass of legislation which distinguishes between citizens and aliens.

Some indication of that massive legislation is contained in the appendix to the government's brief.

For the federal government, alienage cannot be a suspect classification because the Constitution gives the federal government the power and indeed the duty to make that classification and to legislate with respect to it.

And that's a power to duty of course the states do not have.

This necessarily means, I think that if the Equal Protection principle has any application here and I think it does not.

It is satisfied by meeting the rational basis test and I will argue later that the challenge regulation here clearly meets the rational basis test.

But first I want to argue that we ought not to apply the Equal Protection test at all in this case.

We have here an exercise by the Civil Service Commission of the delegated combined powers of the Congress and the President.

And those powers of course relate to a naturalization foreign policy national defense, treaty making and so forth.

And in fact, what has been exercised here it seems to me a power inherent in the idea of the sovereignty of a nation state, the power to distinguish between those who owe it allegiance and those who do not.

And so obviously is this power to differentiate between those who owe allegiance and those who do not an attribute of sovereignty that the practice and question here is followed by every nation in the world.

And so obviously as this is an attribute of sovereignty that it is been exercised and gone on contested for more than 90 years which fact I think give to this regulation all the support.

The long continued and universally accepted usage can confer.

This factor seemed to me to make this case completely different from Sugarman versus Dougall and Graham against Richardson.

The states are not independent sovereigns; they have no power to regulate naturalization, no power to conduct foreign of affairs, and decide what's required by national defense.

No power to make treaties.

Nothing in the Constitution gives them a right explicitly granted to the federal government of treating alienage as a proper classification for legislation.

If alienage is a suspect classification for state law, it is constitutionally made a proper and indeed inevitable classification for federal law.

Justice Thurgood Marshall: Mr. Solicitor General, did the Congress passed and not giving the states the right to discriminate against alien?

Mr. Bork: No, I think not Mr. Justice Marshall because that would be if Congress passed a law in giving the states the power what they wished to do with respect to aliens that would not be a federal policy with respect to aliens.

That would be simply turning over to state policy a subject that does not belong to state policy.

Justice Thurgood Marshall: So, it is a limitation on Congress' authority over alien?

Mr. Bork: Oh!

There are many limitations Mr. Justice Marshall over the Congress' power over aliens not only may it not turn the power over to the states but must exercise itself as a national power but obviously --

Justice Thurgood Marshall: Could Congress authorize the Civil Service Commission to pay the aliens less than they pay citizens?

Mr. Bork: I would think that they could Mr. Justice Marshall.

Justice Thurgood Marshall: They could?

Mr. Bork: I would think that they could.

I --

Justice Thurgood Marshall: Well, could Congress pass a law and it says, “You pay female aliens less than you pay other?”

Mr. Bork: No, I think not Mr. Justice Marshall.

Justice Thurgood Marshall: Why?

Mr. Bork: Whereas my point the equal protection principle does apply to all persons.

And therefore, it applies to persons who also happened to be aliens.

I am not contesting that and if an alien is discriminated against the grounds of its race or sex or age then he will be treated by the equal protection principle just as a citizen would be.

I'm merely suggesting, arguing that the alienage classification is not one to which the equal protection principle applies.

That is when Congress legislates as to all aliens equal protection does not apply when it legislates as to aliens who are women it does apply.

Justice Thurgood Marshall: But it say that the work loss of the United States do not apply to alien?

Mr. Bork: I think it can, Mr. Justice Marshall.

Indeed, we have a variety --

Justice Thurgood Marshall: It's such a little niche that they do whatever they want on employment but anything else.

Mr. Bork: I haven't thought of it that way and I don't believe Your Honor that I'm dividing it by employment as against something else.

I haven't thought of that way and of course much of the legislation about aliens is not legislation about employment it's by a variety --

Justice Thurgood Marshall: I know as the first case it was about employment through acts, wasn't it?

Mr. Bork: Yes, that was a state regulation upon employment.

I think we've never had a --

Justice Thurgood Marshall: Is there any case before that and had anybody else in a suspect classification when the alien is the first one to made suspect?

Mr. Bork: Well, if the language was used before that Mr. Justice Marshall but it seems to me that we have always known from the inception of the Fourteenth Amendment that race was the primary suspect classification in our Constitution.

And I don't know but when the rhetoric of suspect classification began, I do not know.

And when that particular formulation of the problem began, I do not know.

But I think that the distinction between the state and the federal is shown by it when you look the -- when you move from state law to federal law you also move from cases like Sugarman and Graham to cases like Harisiades against Shaughnessy, Kleindienst against Mandel and so forth; cases that uphold the most severe kinds of restrictions upon aliens.

And from the early cases on we have known and this Court said that Congress has power in this field and in fact it has as much or more power in this field that it has in other legislative fields.

There's no place for Congress' power is more complete than in this one.

Now, --

Justice Potter Stewart: That language -- that not only language but that those thoughts you find basically in immigration and deportation case?

Mr. Bork: That's entirely correct Mr. Justice Stewart.

And I'm fully aware of course that the power of Congress is at its strongest when it's choosing to exclude or class of immigrants or to deport.

But I think that decision to admit or exclude is necessarily intertwined with decisions about alien's rights and obligations here.

For one thing, this case could be recast if Congress so desired.

I would suppose to say that a condition of entry in the United States is not apply for federal employment until you have been naturalized and if we would then have the same thing.

In fact, I'm not sure that for that reason this regulation doesn't have all the force that law would have.

For another thing, decisions about how many to admit under what terms and so forth and the standard for naturalization are necessarily influenced by Congress ability to control the package of rights and obligations that the alien has while here.

And again, we see that in the Constitution itself indeed in the Fourteenth Amendment which gives birth to the Equal Protection principle in our constitutional jurisprudence, there is a distinction between aliens and citizens which is a distinction made as to aliens and citizens in this country not for purposes of immigration.

And I will leave the discussion of that distinction to our brief and merely point out that Congress has adjusted this package of rights and obligations that aliens and citizens have again and again throughout our history.

And I think that now to begin to apply for the first time, the equal protection principle in the way that the respondents asked would severely hamper Congress' power, destroy it in many respects.

And it would be a major constitutional innovation without any warrant in the constitutional text, in its history or indeed in policy.

There is for that reason I think only one fully satisfactory formulation of the law with respect to resident aliens.

And I would say is this and I think I've said it before but I will stress it as I leave the point.

The equal protection principle applies to persons who also are aliens but it does not apply to them in their status as alien.”

In any other status, they occupy the equal protection principle may apply to them which is to say that Congress may not impose burdens upon resident aliens because they're white or black or yellow or because of their religion but it may differentiate between aliens and citizens.

Congress may not deprive aliens of specific rights guaranteed elsewhere in the Constitution we're not arguing that it may.

It obviously may not prison an alien without due process, may not subject them to cruel and unusual punishment and so forth.

But the one principle which is manifestly inappropriate when alien -- when the government -- the federal government addresses alienage as a subject is equal protection because inherent the Constitution, inherent the idea of nationhood is a fundamental inequality between citizens and aliens.

Chief Justice Warren E. Burger: What about the right to vote Mr. Solicitor General?

Mr. Bork: Well, I would think that would be one of the last rights that could be opened to aliens Mr. Chief Justice.

That certainly is --

Chief Justice Warren E. Burger: So it can be denied.

It is denied, isn't it?

Mr. Bork: It is denied indeed.

Justice Potter Stewart: Well, that's up to states pretty much, isn't it?

Mr. Bork: Yes, it is up to the states --

Justice Potter Stewart: Have to involve the federal government?

Mr. Bork: Well, I don't think Mr. Justice Stewart.

Justice Potter Stewart: Have some states in the past have allowed aliens to vote?

Mr. Bork: There have been place where aliens have been allowed to vote and I think it might be a delicate constitutional question which I hope I need not embark on here whether the federal government would have in that circumstance if the qualifications --

Justice Potter Stewart: The power to overrule the judgment state --

Mr. Bork: Power to overrule.

Justice Potter Stewart: -- has never exercised it?

Mr. Bork: No.

Justice Potter Stewart: In this area?

Mr. Bork: That's right Mr. Justice Stewart and I think I would reserve that as a possibility but there's no bearing I think upon our present inquiry.

And I think this is the logical answer to our case but should this Court determine that the Equal Protection principle is applicable.

I continue nonetheless to believe that this Commission regulation is valid.

Under the current doctrinal formulation, the equal protection applies with one of two degrees of severity.

The federal power I've just sketched means I think that the strict scrutiny mode of analysis or the test of compelling governmental interest is plainly inappropriate to this subject matter.

To apply them is to effectively destroy Congress' and the Presidents' undoubted powers in this field.

And it is destroy I think very nearly destroy without any warrant the distinction between citizen and alien.

In this context, the federal power at least, it seems to me appropriate to note that alienage is not by any means a permanent or a mutable characteristic like race or sex.

The disability imposed by this Commission Regulation is both temporary and it is quite limited.

Naturalization and the privileges of citizenship are available in five years to an alien and then three, if the alien marries a citizen.

Now, each of the respondents in this case has now have been here not when they started the case but now not been here long enough to qualify for citizenship so far as I know the date none of them is applied.

One respondent have been here for 28 years and has not troubled to apply for a citizenship and I fail to see why in cases like that benefit should be obtained through a lawsuit rather than to a proclamation of allegiance.

Justice Potter Stewart: Now, in -- as far as that point goes the Court wasn't very much moved by that argument in the Griffiths case was it where it was pretty clear that alien did cite it.

She didn't ever want to become American citizens for reasons of her own?

Mr. Bork: That is quite true Mr. Justice Stewart.

The Griffiths case of course was again state restriction.

Justice Potter Stewart: I know but I'm talking about the arguments you're now making.

Mr. Bork: Well, I would think if there is any place in our policy and in our law where we are entitled to say a benefit is available if you choose to proclaim allegiance but it is not available otherwise it would be precisely in the area of federal employment.

For --

Justice Potter Stewart: But this regulation makes no distinction between aliens who were long time aliens and aliens who --

Mr. Bork: No, it does not.

Justice Potter Stewart: -- hopeless promptly as possible to become citizens, does it?

Mr. Bork: It does not, that is quite correct.

Justice Potter Stewart: Right.

And I don't know if -- has Mrs. Griffiths have been appointed by the federal court under the Criminal Justice Act?

Mr. Bork: I do not know Mr. Justice Stewart.

Justice Potter Stewart: Do you know if any aliens have?

Any alien lawyers?

Mr. Bork: I do not know, I don't think they're that many of them but perhaps they have.

I do not know.

But it seems to me that there's a good reason why this regulation does not distinguish between aliens who intend to become citizens and aliens who do not intend to do so and why it covers both classes of aliens.

And I think I will briefly try to explain, try to point to some of the factors that lead me to think that this regulation if it must pass a rational relationship test passes it with high mark.

And I will cite a few things this regulation does which seem to me valuable and which Congress and the President might rationally think to be viable.

At the first place, it offers an inducement for resident aliens to acquire knowledge of this country, to acquire the language, to proclaim allegiance, and to become citizens.

And it seems to me that it's quite legitimate for Congress to wish to induce aliens living here to immigrate themselves into our national life and into our political community in this process of becoming citizens.

That seems to me to be in fact a rather obvious exercise of the power to make rules to respect the naturalization.

Two, it does avoid a rather large and complex of administrative burden that will be entailed by a system in which all federal jobs were classified according to whether or not they entail any aspect of a formulation or execution of policy.

And then we had the tag --

Justice Harry A. Blackmun: Isn't that the result of Sugarman and Richardson on the state side?

Mr. Bork: It is the result on the state side Mr. Justice Blackmun.

I think it need not to be result in the federal side because as I have said because of the very strong federal power that exist in this area.

And if we come to our rational relation test rather than a compelling governmental interest test which was applied in Sugarman, then I think this reason becomes important.

It may not have been enough against the compelling governmental interest test.

I think it is if I'm correct that utmost, the rational relationship test applies here.

Because the federal government which has many, many employees means would have to tag I suppose aliens so that they were not by accident or inadvertence moot to sensitive facilities or into post that might properly be reserved for citizens if we had to meet this administrative burden.

And I suppose it will be a great deal of litigation about that.

And third, the federal payroll I think it's proper to note has become an important means for implementing solutions to economic and social problems.

Minority groups for one example have been benefited by federal act -- affirmative action hiring that helps to counterbalance some discrimination in the private sector.

And I think it might be irrational for Congress to wish to maximize the effectiveness of the federal payroll in this function by confining to it citizens.

So I offer three reasons so others could be adduced.

The inducement to apply for citizenship and to integrate one's self from the national life and indeed in the political community of this nation.

The administrative burden and the use of the federal payroll as a social implement.

None of these objectives is impermissible or evil.

Each of them bears a rational relation to the regulation promulgated by the Commission which means I think that the regulation does not offend the equal protection principle.

So, I come back at the end to where it began.

The compelling governmental interest test can hardly be used with respect to federal legislation or federal regulation that is where the federal government has so much power.

If the equal protection principle apply I think have satisfied here if it does not apply clearly, the regulation is valid and we believe that the judgment of the Court of Appeals should be reversed.

Justice Harry A. Blackmun: Mr. Solicitor General, did the federal Civil Service Regulations accord any preferential status to veterans now?

Mr. Bork: I'm not sure about veterans in general of course -- I think, yes they do.

They do, I can't give you the details of Mr. Justice Powell.

In addition to that of course, an alien who serves has his ability to become a citizen accelerated.

And there is I believe a veteran's preference but I can't give you the details of how would operates.

Justice Harry A. Blackmun: General Bork, would it be a disaster if this case and the next one were decided oppositely?

Mr. Bork: Mr. Justice Blackmun, years of predicting the sky falling and never falls in has lead to believe that very few things turn out to be unqualified disasters.

I think I can speak for myself and for the government attorney, Mrs. Shapiro, follows me in saying that infinitely preferable.

If both of these cases been cited as we asked.

Thank you.

Chief Justice Warren E. Burger: Mr. Steinman.

Argument of Edward H. Steinman

Mr. Edward H. Steinman: Mr. Chief Justice and may it please the Court.

Well, counsel for the government is suggesting that the Ninth Circuit opinion is carved out a novel constitutional argument.

His argument concerning the non-applicability of Fifth Amendment Protections to aliens when the classification is an alienage, I would submit it's the most novel of arguments.

I think it's important to understand that the four respondents in this case were initially seeking jobs that did not involve foreign affairs, did not involve national security, did not involve some of the issues of sovereignty and some of the issues of executive policymaking which was the concern to this Court in Sugarman.

Justice Byron R. White: Well, do you think that the approach necessitates striking the regulation down on its face if you sought certain jobs?

Let's assume you're right.

Why would the regulation be invalid on its face?

Mr. Edward H. Steinman: Well, I think the vice of the regulation is similar to the vice of the regulation which confronted this Court in Sugarman.

Or immediately the state case and as the lower court found and that's where a controlling.

The vice was the overbreadth that while there are clearly jobs which possibly because of --

Justice Byron R. White: I think that were construing a federal regulation here.

You don't strike ordinarily if you can narrow a regulation of the statute, you don't strike it down on its face (Voice Overlap) you don't do that with respect of state statutes or regulations.

Mr. Edward H. Steinman: I would agree that it would be obviously best not to strike on a statute but the interpretation of the regulation has been to automatically foreclose at the stage of submitting an application.

Any none -- any resident alien, I'd like to make one correction of the opening remarks.

The regulation in question says that you must be a citizen or of permanent allegiance as the government's brief at page 81, note 67 of its brief indicates.

The Government has interpreted permanent allegiance to only apply to American Samoans.

But possibly Mr. Justice White if the Government was more liberal in interpreting permanent allegiance we could say the regulation it is chosen not to do so.

One of the ironies of this case is that three of the four name respondents actually at one time work for the federal government.

Respondent Wong and respondent Mok were involved in a federal state manpower program and were placed for the general services.

Justice Byron R. White: It certainly true that there are many aliens working for the federal government are there not in other cases in NASA and --

Mr. Edward H. Steinman: The laws indicate that there are exceptions from many branches of government including Department of Defense, the Atomic Energy Commission and NASA, Department of (Voice Overlap).

Chief Justice Warren E. Burger: That's by the choice of the federal government, is it not?

Mr. Edward H. Steinman: Clearly.

Justice Byron R. White: And here we're talking about the Civil Service Commission?

Mr. Edward H. Steinman: Exactly, and the point I'm wishing to make is that these individuals performed competently and performed as the service wishes to promote the efficiency of the service while working on other programs and yet although the supervisors of the record indicates that they performed.

One performed outstandingly.

The other performed most satisfactory.

When the time came when the Government program ended, they were foreclosed totally from seeking and continuing their jobs solely under status as alien.

Mr. Justice Powell raised another issue which I'd like to addressed or touched into in the record.

He asked about veteran's preferences.

There's evidence from the record of a gentleman named Mr. Bor, it appears at the appendix page 31; it's discussed at page 6 of our brief.

Mr. Bor arrived in this country as a child.

He was dropped in the American -- into the military served for 18 months, 14 of which were in Korea; achieved the rank of Sergeant E-5, received an honorable discharge.

And yet when he left the military and try to apply just apply for job at the Postal Service to which he had been a citizen he would receive veteran's preference.

He was denied the opportunity to apply and as he states in his affidavit, “Although I'm qualified and loyal enough to serve my country for two years in the military, I'm not qualified and loyal enough to work for the post office.”

Justice Thurgood Marshall: But he didn't apply for citizenship?

Mr. Edward H. Steinman: Pardon?

Justice Thurgood Marshall: He did not apply for citizenship?

Mr. Edward H. Steinman: At that time he had not.

Three of the four name respondents in this --

Justice Thurgood Marshall: Wouldn't it be automatic if he had applied for as a veteran?

It would have been no trouble.

Mr. Edward H. Steinman: It would've been under the rule he chose not to.

Three of the four respondents in this case have filed declarations of intent to become citizen.

Obviously, the time the case was filed, they were not eligible because they have not lived here requisite number of years.

The Postal Service has now changed its regulation now that it is no longer under the umbrella of the Civil Service Commission.

It now allows noncitizens to apply on the same basis for almost all positions in the postal service.

I submit that to respond to Mr. Bork's argument that it might be administratively impossible or inconvenient to do so.

The Postal Service has more than one half million employees and yet has chosen last May to change its regulations to now allow noncitizens to apply for old most jobs.

As far as the Equal Protection Clause, clearly this Court has recognized that the Bill of Rights although not explicitly containing equal protection statements contains equal protection principles.

This Court said in the same day they issued decision in Brown versus Board of Education.

It would be unthinkable that the same Constitution would impose a lesser duty on the federal government that imposes on the state.

This Court has continued to make sure that such and unthinkable anomaly does not occur and throughout the last two decades has applied the same type of standards and the same type approaches in regard to federal discrimination that would've apply had the discrimination been practice by the state.

Last term, Mr. Justice Brennan speaking for this Court said in Johnson versus Robison, “If a classification would be invalid under the Equal Protection Clause of the Fourteenth Amendment, it is also inconsistent with the due process requirement of the Fifth Amendment.”

Mr. Bork however contends that the Equal Protection Clause does not apply because this case involves the federal government classifying aliens on the basis of their alienage.

Unfortunately, such statement ignores the clear holdings of this Court in the last four years.

The classifications based on alienage are inherently suspect.

Not just sometimes suspect but inherently suspect that “Aliens as a class are prime example of a discreet and insular minority for whom heightened judicial solicitude is appropriate.”

I think it's important to emphasize why this Court reached that conclusion.

This Court has described the indicia that are common to all the classes which have been deemed suspect.

In the Rodriguez case, this Court said that such heightened judicial solicitude was needed because these individuals are “saddled with such disabilities, or subjected to such a history of purposeful and equal treatment, or relegated to such a position; a political powerlessness as to command extraordinary protection from the majoritarian political process.”

Mr. Justice Powell in the Griffiths case delineated some of the historical hostility that has been heaved upon noncitizens.

The scorn, they have been treated as constitutional outcast.

This Court has recognized that most states today do not allow noncitizens to vote that they've been denied to franchise.

Likewise, the fact that noncitizens can become citizens if they wish to exercise the option given to them by Congress did not dissuade this case, this Court in other cases in Sugarman.

Two with the four appellees chose not to exercise the right to become a citizen.

Mr. Justice Powell in Griffiths, explicitly stated that Mrs. Griffiths chose not to file a declaration of intent even in Graham versus Richardson, the appellee Richardson have been in this country far long than necessary to become a citizen.

If the fact that she chose not to become a citizen also was have no important to this Court.

What I'm saying is that the classification based on alienage does not change because it's the federal government.

This Court has continued to recognize that when the federal government itself practices discrimination.

It is bound by the same standard and the same protections which have been put on the states in some more discrimination.

In the Griffiths case, Mr. Justice Powell said that the interests has been characterized but the government must show in many ways overriding, compelling, important, substantial.

I'm not worried about pigeonhole in this case, in any of those words as the Court said we attribute no particular significance to these variations in diction.

What is important is when such discrimination exists; the Government has a duty to show something more than just some rational basis.

Although, as we contend even under that more differential standard as the Ninth Circuit find in this case, the Government has not satisfied its duty.

I just like to make one remark in that area.

The test is whether or not the Government has employed means which rationally relate to some governmental purpose.

There's only one purpose in this case.

The purpose is to best promote the efficiency of the Civil Service, that's a direct quote from 5 U.S.C. 3301.

The purpose of the Civil Service system is to overcome the spoils which historically unfortunate attached the government employment.

The purpose of a Civil Service system is not to hire citizens.

This Court has long discarded the old notion of a special public interest.

The purpose is to have an efficient government and there is nothing about being a noncitizen, about being a resident alien which means that a person will not be efficient, will not be a competent employee.

Unfortunately, my clients and other resident aliens throughout the country are not even given the right to apply, are not even given the right to go through the normal investigative screening process which show whether individual is efficient for the job, to show whether the individual may be loyal.

I do not deny that sometimes the person because of his noncitizen status may not be loyal.

This Government spends millions of dollars each year and employs tens of thousands of people to check on the loyalty of citizens for certain position.

My client wanted to be treated equally in that sense.

Justice Thurgood Marshall: Well, your client they're willing to take the oath to support the Constitution of the United States and defend it?

Mr. Edward H. Steinman: To the extent --

Justice Thurgood Marshall: One of them did.

Mr. Edward H. Steinman: Three of them have.

Justice Thurgood Marshall: But I said one had certainly did.

Mr. Edward H. Steinman: Three of the --

Justice Thurgood Marshall: There is not objection on the employee direct?

Mr. Edward H. Steinman: No, the fourth has not for her own purpose but of her own religious belief and own political reasons.

And I don't think that she would sign it.

The Congress does not require in the passage on 1952.

Congress required that resident aliens come in this country signed a declaration of intent to become a citizen.

The 1952 law erased that requirement.

So the Congress itself does not do it.

I would think there probably a large percentage of resident aliens would be willing to sign that oath.

Unfortunately, the regulation and its interpretation by the Civil Service Commission preclude that possibility.

Justice Byron R. White: Would you expand on your comment that your one client refused for her own religious and political reasons.

Tell us what that means.

Mr. Edward H. Steinman: When I say, “refused” she has not chosen the option which Congress has given her.

It is not in the records.

I'm going out the record which she have told me is that she feels that she is a citizen of the world and that she doesn't feel that she owes any more or less loyalty to any country.

She chooses -- she was and her name is Ms. Lum.

She was sought by HEW to be in evaluator of education programs.

She has 15 years of teaching experience.

She has one master's degree and studied at many universities including Stanford and Seton Hall.

They asked her to apply, she couldn't.

Her point right after why did she become a -- why didn't she become a citizen.

She said initially she didn't for political reasons because it might have harmed her family in China.

Over the years she has said that she would like her status of being citizen of the world.

Congress until 1952 requires --

Justice Potter Stewart: She is a citizen in the world but what nation in fact is she a citizen?

Mr. Edward H. Steinman: I don't think that -- I think that she feels she is a resident in United States but in our conversation she has not stated that she is a citizen of anyone country.

Justice Potter Stewart: Where was she born China -- Mainland China?

Mr. Edward H. Steinman: Yes.

The other three named respondents have filed declaration of intent to become a citizen although as I said the Congress no longer requires it.

Consequence of Government has said there are even if you apply assumes the more differential test.

He says that it's satisfied by various interests to induce people to become citizens.

Well, I would assume also that we can induce people become citizens by not allowing into work for state governments.

Such a factor was raised before this Court and obviously not found dispositive.

Also, that notion of administrative burdens, I would submit that administrative burdens are both legally and factually relevant.

This Court has very strongly said that the Constitution requires higher values and speed and efficiency that “this has been a Frontiero case decided in 1973.”

There could be no doubt that an administrative convenience is not a shibboleth.

The mere recitation of which dictates the constitutionality.

I would also point this Court to page 28 of our brief a long quote from Mr. Justice Black in Reid versus Covert where he said that “to allow an argument administrative convenience is a very dangerous doctrine and if allowed to flourish would destroy the basis of a written Constitution and undermine the basis of our Government.

I also submit that administrative inconvenience is factually irrelevant.

Although, there are millions of jobs in the federal Civil Service very few involved the type of policymaking issues, involved the type of responsibilities which this Court recognize in Sugarman might best be reserved to citizens.

I also submit that the fact that the U.S. Postal Service which employs more than a half million people itself has found that it could change its regulations is another example that administrative inconvenience even if legally relevant which we do not agree.

Chief Justice Warren E. Burger: Well, aren't we talking about constitutional power here if the government wanted to in any particular department assuming that Mr. Bork, the Solicitor General's position is entirely correct they can waive it with respect to any particular department or employment can?

Mr. Edward H. Steinman: That's right.

They have chosen not to.

They have chosen to issue a blanket exclusion.

Chief Justice Warren E. Burger: Now, what about your argument on discrimination.

Do we not discriminate against aliens when we classify them in a way that they must apply for citizenship so that the very denial of citizenship benefits until they take some step which native born American need not take it is a form of discrimination, is it not?

Mr. Edward H. Steinman: Yes, I think the answer though is stems -- well, the problem which you raised tends some with confusion.

Plenary power of the United States Government is not over aliens last in Sugarman at page 646.

This Court said, “Its comprehensive power over immigration naturalization.”

And to the extent that decisions are made concerning who enters this country; the conditions of naturalization whom who is deported that is to what the plenary power addresses itself.

But as this Court stated in 1970 and I quote it's at page 39 of the brief but the case is Hellenic Lines versus Rhodetis, this is a quote.

“The Bills of Rights is a futile authority for the alien seeking admission for the first time to these shores.

But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our border.”

And I will skip a few sentences and go on to the last.

“The Constitution extends an alien of privileges to all persons and guards against any encroachment on those rights by federal or state authority.

The plenary power argument --

Chief Justice Warren E. Burger: And what kind of a case was that?

Mr. Edward H. Steinman: This was a case concerning benefits under the Jones Act for seaman but the argument was made that because the person was only a lawfully resident alien he was not entitled to certain benefits.

Chief Justice Warren E. Burger: Why do you have to say about Mr. -- what the Solicitor General's point but Congress would have plenary power to attach conditions to the original entry?

Mr. Edward H. Steinman: I would think that is probably correct.

I would think I would also make this Court aware that Congress in 1965 by statute took away any power that it might have or it need not do so to discriminate against incoming aliens the basis of race free to religion.

And according to my research and according to the handbook immigration law of Mr. Gordon and Mr. Rosenfeld there are currently only two laws on the books which condition of course any condition an alien is entering.

One is a bond for those who might become dependent in the welfare system.

The other relates to aliens who might otherwise be inadmissible.

I agree with you that under the decisions of this Court although I might personally not like that.

Congress can attach any conditions it wishes on those who have not yet entered the country.

One of the key factors is whether or not someone is lawfully here.

Chief Justice Warren E. Burger: In putting excluding them entirely?

Mr. Edward H. Steinman: I would think so.

I would also think that Congress could even say that you enter the country in a condition you can't work for the state or federal -- for the state government.

The issue in this case involves people who are lawfully here.

Justice William H. Rehnquist: To the extent Mr. Steinman you say Congress has plenary power over conditions of naturalization to the extent your argument were followed here.

I take it Congress would not have a great deal to do in that area.

There's very little it can do to distinguish between people who are naturalized and people who are simply resident aliens and haven't sought naturalization.

Mr. Edward H. Steinman: I think there are many distinction between naturalize and native born citizens and resident aliens.

First of all, I've see decisions concerning immigration and deportation can only be made in regard to resident aliens.

Citizens are not covered by that.

Second of all, although as this Court recognized the Constitution applies to both citizens and noncitizens.

There is a difference on how the Constitution applies.

If you're an alien, the Government is trying to do in this case can suggest possible compelling to overwrite the interest why an alien can be discriminated against.

If you're citizen, there is no interest that would allow the Government to discriminate against you on your status as a citizen.

Because you are a citizen, you cannot be denied the right to vote, the right to employment.

You may be denied for other reasons because you are an alien you may under the Constitution be denied those rights, if the Government can show a compelling interest.

Justice William H. Rehnquist: Well, has this Court ever found that the Government was able to show a compelling interest where the compelling interest test was applied?

Mr. Edward H. Steinman: I am not aware of that but I would think that in the Sugarman case you explicitly suggest that in the area of voting and the area of holding high public office and the area of holding positions with public policy and confidential components that the Government might be able to satisfy the state government, might be able to satisfy the compelling interest.

Justice Byron R. White: In other words, the Justice is really asking whether the choice of the test doesn't dictate the result.

Mr. Edward H. Steinman: I think in this case it doesn't because I think that the respondents prevail under either test to the extent that the choice of the test dictates the result that is because the Constitution is very zealous to make sure that members of suspect classes have heightened judicial protection.

The problem in this case of course is not whether or not the federal government can for certain job requires citizenship.

We don't object to that, we think it can.

The problem here is the blanket exclusion and obviously the vice of overbreadth is very serious.

Justice Byron R. White: Well, do you say the Government -- that Congress could impose conditions on entry including a condition that you would (Inaudible) for state government?

I take it do you suggest that just hasn't exercise that power?

Mr. Edward H. Steinman: That's right.

Justice Byron R. White: But if it had you wouldn't be here?

Mr. Edward H. Steinman: Well, I'm not sure I wouldn't be here but I think the test could be quite different and I think this Court would give more difference at the congressional power.

As our brief suggest, we don't think that even if plenary power exist that it's something which automatically means to government wins.

In other context, this Court has said that you cannot invoke a plenary power as “talismanic incantation to support the exercise of any Congressional power.”

But clearly if we are in the area of the plenary power in regard to decisions concerning immigration or deportation, I would think that the Government would have a much easier burden to satisfy.

Justice Byron R. White: How do you categorize the federal power to exclude or to deport an alien if he commits a crime?

Mr. Edward H. Steinman: That is under the plenary power, under the Constitution which gives Congress the constitution only says plenary power regarding naturalization.

This Court has said that implicitly contains plenary power over decisions in regard to immigration and deportation.

That's for the plenary power is.

The plenary power is not totally over aliens.

Justice Byron R. White: So you would say that if the Government can deport a person for committing a crime, the Government could if it said so clearly deporting for trying to work for the Government or for working for Government?

Mr. Edward H. Steinman: This Court has over in the last two decades carved out some substance procedure -- substance due process protections for those being deported.

I'm not sure that like example you give would satisfy the Court protection.

Justice Byron R. White: But this is clearly big difference for example between a citizen and an alien?

Mr. Edward H. Steinman: I totally agree and fortunately this case does not involve resident aliens who are doing something wrong but involves resident alien who wish to work for the government and use his skills which they brought with them in the best ways.

Justice Byron R. White: So you think this case really involves -- in from one point of view only and argue and over whether that Congress has exercise powers that it obviously had?

Mr. Edward H. Steinman: Well, I think that Congress exercises power.

I don't think it exercise powers in the area of plenary power as this Court has carved out.

I think that in one way to think of the plenary power's argument is that when this Court has focused on issues of immigration and deportation it is because they involved issues of national security, they involved issues of foreign affairs, they involved issues of the sovereignty of this country and when those type issues are intertwined it becomes more important for this Court to recognize Congress' powers given by the Constitution.

Applying for federal employment as a janitor or applying to federal employment as a file clerk raises no issue of national security, it raises no issue of foreign affairs and I think that is the distinction which has to be made.

Justice Byron R. White: Well, what kind of employment did your fourth client apply for the one who is the citizen of the world?

Mr. Edward H. Steinman: She was sought -- HEW asked her if she was interested in being an evaluator of education programs and on their request she sought to file an application and was not permitted to file an application.

And should it turn out Mr. Justice Blackmun that the position that she sought might involve issues of national security, might involve the type of executive policymaking which was concerning to this Court and into the Sugarman decision and quite properly she might be foreclosed in that position.

The problem is that the regulation as it reads now does not permit that decision to even be made.

It cuts her off at the start before anyone can inquire into her application or abilities.

Justice Potter Stewart: This regulation is common to most of the nations in the world, isn't it?

Mr. Edward H. Steinman: You're right.

Justice Potter Stewart: I suppose your point is that they don't have a Constitution of the United States and they can indulge in all the xenophobia they want to?

Mr. Edward H. Steinman: Well, this Court has said repeatedly the Reid case Mr. Justice Black said that United States has entirely featured the Constitution and its power and authority have no other source.

My one observation I think is important that if we look to International law and this Court would to decide of the Sugarman and Griffiths cases totally the other way because the international law does not permit noncitizens to work in the states of various countries.

Justice Potter Stewart: Well, most countries are not federal systems when such (Voice Overlap).

Mr. Edward H. Steinman: But those that are would not reach decisions of this Court reached Sugarman.

Likewise, the Government properly said that this type of regulation has been in the books for nearly hundred years.

Well, clearly as this Court has said that no one requires a vested or protected right in violating the Constitution.

Mr. Justice Burger in 1970 in the Williams versus Illinois case I think said at best.

New cases exposed all the infirmities which apathy or absence of challenge is permitted to stand but the constitutional imperative of Equal Protection Clause must have priority over the comfortable convenience of the status quo.

We fill very strongly that Ninth Circuit was entirely correct in striking on these regulations as being unconstitutional.

We also feel strong as our brief indicate that the Ninth Circuit could've avoid to the constitutional issue by finding that this regulation was not authorized by the United States Congress or the President of the United States.

This Court has required when sensitive individual rights are involved that there be explicit authorizations when the Executive Branch issues a regulation that the substantial restraints and employment opportunities which raise issues of constitutional mention -- require explicit and specific authorization.

This is from Greene versus McElroy.

In this situation, there is no congressional authorization.

The statutes since 1883 are totally silent in citizenship.

They are specific though about a merely of other employment criteria.

They authorized the President to ascertain fitness as to age, health, character, knowledge, ability for employment sought.

The specificity with regard to these five criteria I would submit indicate that other criteria were not intended and given the fact that the whole operation the Civil Service of program is to best promote the efficiency of the Civil Service.

It can best be promoted by a larger pool of employees not a smaller pool.

Chief Justice Warren E. Burger: Well, the Government has solved that problem by picking and choosing which alien it wants in the past, does it not?

Mr. Edward H. Steinman: None of the regulation --

Chief Justice Warren E. Burger: It doesn't deny itself the pool.

It picks and chooses Wong or Von Braun or various other people when they have a great need for the protective services?

Mr. Edward H. Steinman: Unfortunately, my clients are not of status of Mr. Von Braun and my clients fall under the competitive Civil Service.

The federal government has chosen when none competitive civil service.

Chief Justice Warren E. Burger: We'll resume after lunch.

Mr. Edward H. Steinman: Thank you.

[Lunch Recess]

Chief Justice Warren E. Burger: Mr. Steinman, you have a few minutes left.

Mr. Edward H. Steinman: Thank you Mr. Chief Justice Burger, may it please the Court.

My remarks ended concerning our arguments that the regulation is not authorized by the Congress or the President and that the regulation also conflicts with two Executive Orders.

I feel that our presentation of the brief adequately covers that.

I'd like to conclude my remark that under the Constitution of United States, the Congress has many alternatives, many paths it can take.

It can as suggested by this Court's decision in Sugarman, issue regulation, statutes which say that particular positions because of issues of sensitivity, because of issues of national security, because they involved the formulation, the execution, the review of broad public policy may only rest with citizens.

Likewise, as we suggested this morning, Congress if it chooses and it has not so chosen yet, can impose certain conditions on those who enter, those who are not yet achieved that status of lawful resident alien; those who have still not touched upon the soil of the country.

The point is that Congress has not chosen to do that.

Justice Byron R. White: I need to make -- to get that clear.

Does a condition at that Congress might impose?

Does it end when they finally admit him to the country?

Mr. Edward H. Steinman: According to the decisions of this Court, the importance that attaches when a person becomes a lawful resident alien that is enter this country as a resident alien to be here on a permanent basis.

That is when the person's rights under the Constitution as a person come into effect.

Justice Byron R. White: Do you suggest then that if you admit a person to this country for a permanent residence or even for temporary residence that the condition -- you cannot impose the condition that while he is here he not work for the federal government?

Mr. Edward H. Steinman: No, I'm suggesting that once he is here, the condition will not be imposed.

If that is impose as a condition of its entry into United States that is entirely a different matter.

That --

Justice Byron R. White: And you say that has not been done here.

Mr. Edward H. Steinman: That has not been and though it is not and as I have suggested that Congress has only in two different areas imposed conditions on those who entered United States.

This is not this case here.

Justice Lewis F. Powell: If that condition were imposed upon his entry and he violated the condition, what's the Government sanction?

Mr. Edward H. Steinman: Government obviously can potentially if that is one of the grounds for deportation.

The Government has chosen first not to use -- impose the condition or second or the Government has not utilized deportation for violation of certain types of laws.

But the Government always have the powers of deportation subject to of course constitutional constraints that are placed on that.

Justice Lewis F. Powell: And it could disqualify the alien working for the Government?

Well, then aren't you really -- if you prevail here aren't you really opening the door to adjust this kind of action by Congress and if it is taken are not your client's (Inaudible) than they are to date?

Mr. Edward H. Steinman: Clearly, my clients wouldn't be because there are resident aliens but possibly future immigrants to this country might have conditions post now.

Let me -- my point is that for purposes of argument in this case I will concede that Congress has it.

As an attorney of that case came before me, I would like to be back before this Court (Voice Overlap) point.

Justice Potter Stewart: Do you say it was under constitutional condition?

Mr. Edward H. Steinman: I would say that, but I'm trying to say that at this point Congress the vehicle that Congress chose and has chosen now a blanket regulation that only deals with resident aliens is not a proper vehicle under the Constitution.

In Graham, this Court said, “The Congress does not have the power to authorize the individual states to violate the Equal Protection Clause.”

What I'm suggesting in this case is that Congress doesn't have the power to authorize itself to violate the Fifth Amendment.

Whatever tests this Court employs the compelling interest test a rational relation etcetera.

The Congress has violated the Constitution.

Should Congress choose other vehicles and I hope that Congress would take the lead that Mr. Justice Blackmun suggested in Sugarman that possibly identified those types of positions were maybe we wished to have citizen formulation and execution review that brought public policy that Congress take the lead of a postal service where the postal service has identified its certain sensitive positions still must be held only by citizens.

But that for the broad mass of people such as the jobs that my clients are seeking, unfortunately not seeking a job sought by in Mr. Van Braun that citizenship is clearly not relevant for that.

Thank you very much.

Chief Justice Warren E. Burger: Thank you Mr. Steinman.

Mr. Solicitor General, do you have anything further?

Rebuttal of Bork

Mr. Bork: I have nothing further Mr. Chief Justice.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

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Hampton v. Mow Sun Wong - Oral Reargument

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Case:

Hampton v. Mow Sun Wong

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Saxbe v. Bustos - Oral Argument

Thu, 23 Aug 2012 18:26:31 +0000

Case:

Saxbe v. Bustos

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Transcript:

Argument of Mark L. Evans

Chief Justice Warren E. Burger: We'll hear arguments next in 73-300, Saxbe against Bustos and 480, Cardona against Saxbe.

Mr. Evans?

Mr. Mark L. Evans: Mr. Chief Justice, and may it please the Court.

The issue in this case concerns the proper treatment under the immigration laws of that class of aliens known as green card commuters.

A commuter is an alien who has been legally admitted to the United States as an immigrant with the attendant privilege of residing permanently in this country.

He has chosen, however, not to exercise that privilege, at least for the time being.

Instead, he maintains his residence in Mexico or Canada.

He commutes to work in this country, entering each time on the basis of what used to be a green colored border crossers' identification card, which like the bluebook that some of us know of has changed colors but not names.

It's now blue card, it looks very much like a driver's license, but it's still called the green card.

This is the immigrant's alien registration receipt card which is issued to every immigrant shortly after he enters this country.

There are two general classes of commuters, although the lines are not always easy to draw.

First, some immigrants commute on a daily basis to jobs in this country, returning each night to their home, much in the same way that a Maryland of Virginia resident would commute to the District of Columbia.

Second, some commute on a seasonal basis coming to this country for longer stretches of time, usually to work in agricultural labor and then returning to their homes across the border usually at the end of the planting or growing season.

Justice Potter Stewart: And those liner people could work for one employer, but more usually would work for many employers --

Mr. Mark L. Evans: Usually, that's right.

Justice Potter Stewart: -- during the period of their presence in the United States?

Mr. Mark L. Evans: That's right.

They usually will follow the crops.

Justice Potter Stewart: Follow it, yeah.

Mr. Mark L. Evans: According to the current statistics that have been provided to me by the Immigration and Naturalization Service, there are a total of approximately 50,000 daily commuters of whom 42,000 are Mexican aliens and 8,000 are Canadians.

Chief Justice Warren E. Burger: Canada is mentioned, is that a very significant factor?

Mr. Mark L. Evans: Is Canada a significant factor, indeed, it is, sir because --

Chief Justice Warren E. Burger: What are the figures there --?

Mr. Mark L. Evans: There are 8,000 daily commuters from Canada.

There are no seasonal commuters from Canada, but insofar --

Justice Potter Stewart: -- mostly be in the Windsor-Detroit area and in the Niagara Falls area?

Mr. Mark L. Evans: That's right, mostly, it's -- the majority, I believe, are in the Windsor-Detroit area, but there are spread out over the Northwest and Northeast as well, some daily commuters.

Of the 42,000 Mexican daily commuters, about 15,000 or little less than one-third are employed as farm laborers, the rest are engaged in industrial labor or building a construction work or in sales and service work.

Of the 8,000 Canadians, less than 200 are agricultural workers.

Most, as I've indicated, commute from the Windsor, Ontario area to the Detroit, Michigan area.

In addition to these 50,000 daily commuters, there are about 9,000 seasonal workers.

All of them currently are from Mexico, most of them involved in agricultural work.

The legal issue here is whether these daily and seasonal commuters, each of whom has been previously admitted to this country lawfully as an immigrant, may cross the border to work each day or each season without applying each time for a new immigrant visa, which is the formal document ordinarily required for entry to this country as an immigrant.

If a new visa were required for each entry, the commuter practice could not continue, even if it were physically possible to process 50,000 applications for visas -- for visas per day.

The entire annual limitation upon the issuance of immigrant visas to western hemisphere immigrants since 1968 is 120,000 which, of course, would be exhausted in less than three days.

The immigration authorities have followed the practice for 47 years of permitting commuters to enter as immigrants with informal border crossing documents after their initial entry with an immigrant visa.

The lawfulness of that practice under the present Act is determined by Section 211 of the Act, which is set forth at page 80 of our brief and I -- it maybe worth referring to it because the language -- the case would -- turns on the precise language of these sections.

Page 2 -- page 80 in the middle is where 211 is set forth.

Part A of 211 establishes the general rule that an --

Justice Byron R. White: Page 80 --

Mr. Mark L. Evans: Page 80, I feel bad about that after --

Justice Byron R. White: I hope you do.

Mr. Mark L. Evans: But this is the appendix.

Justice Byron R. White: Yes.

Mr. Mark L. Evans: So, in Section [Voice Overlap] [Attempt to Laughter] Section 211 (a) establishes the general rule that an immigrant visa is required for entry as an immigrant.

211 (b) establishes the sole exception to that requirement, which permits the Attorney General to dispense with formal documents for “returning resident immigrants” defined in Section 101 (a) 27 (b).

It is therefore the language of that Section 101 (a) 27 (b) upon which this case in our view turns.

That language appears just above Section 211 at the top of page 80.

It is one of the definitions as you can see of special immigrant.

When it is read together with Section 211 (b), it provides that a visa is not required for entry by “an immigrant lawfully admitted for permanent residence who is returning from a temporary visit abroad.”

Justice Harry A. Blackmun: So, it gets down to whether he is lawfully admitted for permanent residence when he has a permanent residence abroad?

Mr. Mark L. Evans: That's one of the issues.

There are actually two others because the plaintiffs in this case also argue that he's not an immigrant and that he is not returning from a temporary visit abroad, but this basically comes down to whether actual residence is implied in this definition of a person who can enter on an informal documentation.

Justice Harry A. Blackmun: I suppose, we'd all be more comfortable if we had a more specific newer statute.

Is there something pending in the Congress to clarify this general area?

Mr. Mark L. Evans: Well, there are -- there are a handful, six or so bills pending which would have some impact in one fashion or another upon the commuter practice.

So far as I know, there have not been any reports by the relevant committees that have been submitted as of yet.

Justice Harry A. Blackmun: Is the Service sponsoring anything over there -- there are no clarifications?

Mr. Mark L. Evans: No.

But I'm not sure if clarification is needed Mr. Justice Blackmun.

The phrase defined in Section 101 (a) 27 (b) that we just looked at and the crucial phrase upon which you -- to which you pointed is itself a term of art which is defined in Section (a) 20, which is on the prior page, at the bottom of the prior page and on top of the next and that says precisely what lawfully admitted for permanent resident means.

It means, the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant, such status not having changed, there is not requirement in that definition and there's no requirement anywhere else in the Act that that privilege be exercised in order to maintain the status of a lawfully admitted permanent resident or indeed to become -- to have -- to acquire the privileges that go with being a lawfully admitted -- a person lawfully admitted for permanent residence.

Chief Justice Warren E. Burger: Do you think that takes care of the next phrase who is returning from a temporary visit abroad?

Mr. Mark L. Evans: No, that doesn't take care of it.

I think, it certainly bears on it because --

Chief Justice Warren E. Burger: That language, doesn't that language sound like someone who's gone to the South of France for the winter and --

Mr. Mark L. Evans: Yes.

I --

Chief Justice Warren E. Burger: -- the spring?

Mr. Mark L. Evans: -- no question that at first blush, it appears to what we refer to someone --

Justice Byron R. White: Permanently residing.

Mr. Mark L. Evans: Who's permanently residing here, who has been out of the country temporarily is returning to his home.

Justice Byron R. White: -- because of the things or privilege, but one could not stand to --

Mr. Mark L. Evans: Well, that's what it would seem.

But when you analyze it, you've got three words, temporary, visit and abroad.

Now temporary clearly applies in all -- in both commuters -- a commuter whether he is residing here in Mexico or in Canada.

Abroad is also without question.

The only word that really carries this superficial implication is visit, and in the context of a commuter who is not a resident here, there's nothing that really strains the language to say that he's visiting when he goes home to sleep or goes home for part of the season.

What's implied in the word visit, I think, is the intention to come back to this country, that it's a departure for temporary purposes with an intention to return.

And I think that that -- while it's -- as the Ninth Circuit said, there's some strain in the language, I don't think it's so severe that we should read the rest of the statute as having been attended to, to abolish this practice we're going after so long.

Let me add also that there is -- I mean, this all seems a little strange, I confess, but the legislative history that underlies the Act itself makes it quite plain that Congress was fully aware that the Service was treating, had a class of commuters that were treated as lawfully admitted permanent residents, although they were residing in foreign contiguous territory and on pages 52-54 of our brief, we've set forth the crucial language in the report.

The report that I'm referring to is one that was a product of an exhaustive study by the Senate Judiciary Committee that was the basis upon which the 1952 Act was developed and ultimately enacted.

This was a 900-page report in which the entire field of Immigration and Nationality law and practice was thoroughly examined.

Practices that were inconsistent with what the community thought was good policy were plainly and obviously branded as improper or that they shouldn't be continued.

The committee regularly made recommendations throughout the report for legislation to correct what they thought was an improper practice.

It clearly and plainly recognizes the commuter practice.

It starts of --

Justice Potter Stewart: What's the date of the report again?

Mr. Mark L. Evans: This is a 1950 report as I understand it.

Justice Potter Stewart: 1950.

Mr. Mark L. Evans: 1950, but it was -- on the basis of that report, the initial Bill which ultimately became a section later, the 1952 Act was -- and the provisions are basically the same.

I mean, it's an important part of legislative history.

No mention after this report was made of commuters in any of the subsequent reports.

At the top of page 53, we have italicized the phrase, a resident alien's border crossing identification card as the resident alien's border crossing identification card is issued to an alien, so-called commuter who has been admitted for lawful permanent residence, but who resides in foreign contiguous territory and is employed in the Untied States.

Down further again, the same point is made.

Chief Justice Warren E. Burger: Do you think this takes care of the South of France, hypothetical --?

Mr. Mark L. Evans: Well, I don't think this doesn't address itself obviously to the temporary visit abroad, but I think it recognizes that this practice has been in existence that it's not necessarily inconsistent with the language that was ultimately adopted by the Congress in 1952 Act.

And I think it's only proper to read the temporary visit abroad consistent with Congress' awareness of this practice going on and it's refusal to abolish it or even to suggest anywhere in this 900-page report that the practice was improper.

Chief Justice Warren E. Burger: We should have it, Section (b), that we're talking about was enacted when, in what year?

Mr. Mark L. Evans: 211 (b)?

Chief Justice Warren E. Burger: Yes.

Mr. Mark L. Evans: Well, the original language of 211 (b) was enacted in 1952, but it has been amended and the plaintiffs in 1965 and the plaintiffs -- I refer to Mr. Terris' clients -- plaintiffs because we're cross-petitioners here.

The plaintiffs attach some significance to the change.

Originally, the language read, I'm looking now at 211 (b) where the language appears, “returning resident immigrants defined in Section 101 (a) 27 (b).”

Originally the language read, “aliens lawfully admitted for permanent residence who depart from the United States temporarily” and the plaintiffs have argued that the changes from that language to the present language reflected Congress' determination that actual residence was required.

In fact, no such purpose can be found anywhere in the legislative history of this amendment.

The plaintiffs argue that a brief exchange, obscure colloquy is what the Ninth Circuit referred to it as, between the general counsel of the Immigration Service and a staff member of the House Judiciary Committee, in which the staff member was asking certain questions about the commuter practice and was getting responses from the general counsel.

They draw from this the inference that two years later in a Bill, it wasn't even before Congress at the time the hearings in which this exchange took place, were commenced, was intended to be a response to the Service's, practice with respect to commuters.

Well, it's very hard to accept that when you look at the reports that are associated with this 1965 Amendment which was a very major piece of legislation.

Nowhere in the report is there any mention of commuters, the reports of the House and the Senate each list 9 or 12 what they call basic changes that are going to be made in the Immigration Act by this amendment.

No mention is made there of commuters.

The House or Senate Report of (Inaudible) Rich says that the rest are minor and technical and it's difficult for me to comprehend that the relevant committees of the House and Senate would with the stroke of a pen abolish a commuter practice that's been going on for 47 years, at that time not quite that long, but for quite a long time, without mentioning that it was doing it or without specifying that it had any intention to do so.

And I can't believe that it would be viewed as a minor or technical change.

There's a contention made here also that the commuters failed to satisfy the definition because they are not immigrants, but rather non-immigrants.

An immigrant is defined by the Act as any alien who is not a non-immigrant and it is in that sense a negative definition.

If you're not a non-immigrant, you're automatically an immigrant.

The non-immigrants are defined in -- for purposes irrelevant to this case in Section 101 (a) 15 (H) (ii) which is set forth on page 79 of the brief.

And that states that you are a non-immigrant, if you're an alien having a residence in a foreign country which -- who has no intention of abandoning it, who is coming temporarily to the United States to perform temporary services or labor.

Plaintiffs contend that this fits precisely what -- to the situation with respect to commuters.

What they neglect, what they overlook, however, is that there is an additional requirement associated with that category of non-immigrants.

Namely, if unemployed persons capable of performing such a service or labor cannot be found in this country.

Well, this is part of the definition.

If you can't satisfy that definition by virtue of the Act's language at the top of the page here, you are an immigrant, and the Act, in fact, in another section, in Section 214, presumes that you are an immigrant unless you establish that you are a non-immigrant.

The plaintiffs argue that this means, this failure -- they don't contend, let me start there that there are people in this country who cannot be found to perform the labor that the commuters perform.

They claim that the availability of this labor simply means that these non-immigrants can't enter, they fall into another land.

They're neither non-immigrants nor they are the immigrants, because if they were non-immigrants, they could come in with non-immigrant visas unless they were otherwise excluded.

They read this as an exclusion when it appears in a definitional section, it's part of the definition, and the whole structure of the Act is designed to make it difficult unless you comply specifically with the language of the definitional statutes to enter as non-immigrants, non-immigrants who can enter without regard to numerical limitations.

And for that reason, most often, aliens seek to enter as non-immigrants because it's difficult to obtain immigrant visas.

And for that reason, the Act starts with a presumption that you're an immigrant, that you can't satisfy the non-immigrant definition, you're an immigrant and sometimes that means you can't come in at all.

Well, in this case, the plaintiffs have argued that this is an exclusionary provision.

It's not at all and it wasn't intended to be.

The Act very clearly -- excuse me, the legislative history to which I referred before, very clearly distinguished between commuters on the one hand whom they recognized the Service was treating as resident aliens and what they called temporarily agricultural labor on the other hand.

That referred to the labor that had been brought in under a series of special legislation -- legislative provisions to relieve manpower shortages during critical times for harvesting and so forth and a determination was made that there should be some permanent provision in legislation to permit this kind of relief of manpower shortages.

But there was no suggestion that commuters were to be put into that category because the committee that was examining the immigration practice realized that commuters were not -- were part of the stable labor pool.

They were here and they came in regularly and they were treated under the prior Act as having been lawfully admitted for permanent residence.

It was to expand the existing labor pool that they made this provision of section -- subsection (H) (ii), and it was not in any way and effort to exclude aliens -- to exclude commuters.

Justice William H. Rehnquist: Mr. Evans, in the legislative history that you cover on pages 52 and 53 of your brief, where there is an express reference to the so-called commuter.

Is there any indication reading that in its context that it referred to both seasonal and daily commuters?

Mr. Mark L. Evans: No, there's nothing there is nothing in there that suggests -- as a matter of fact, I don't think the Service at that time had any clear notion of their being a distinction.

It's not clear from the record the Service's kept because in those days, there were not -- there was no distinction made that there were any seasonal -- they may have been or may not have been.

But there's nothing in the practice or in the history to suggest that seasonal commuters would have been treated any differently than daily commuters.

Daily commuters -- as I said the lines are difficult to draw.

Some seasonal commuters stay in the country for some seasons and go back home and commute daily for a while, and it's a kind of a spectrum and --

Justice William H. Rehnquist: Well, does a typical seasonal commuter come in, say, in March or April and stay until October or November or does he begin commuting on a daily basis for only part of the season?

Mr. Mark L. Evans: Well, again, there's a spectrum involved.

Some commuters only make, say, an average of two entries and exits in the course of a calendar year.

They'll be a planting season and a harvesting season, for example, and in the interim, they will be back on their farm in Mexico.

Others may stay for a shorter period, a week at a time maybe and back for a week.

But there is no set -- I can't give you a typical example.

There are occasions that I've seen in reading through the materials that have been --

Justice William H. Rehnquist: It's the regularity of the thing that makes them a commuter?

Mr. Mark L. Evans: It's -- right.

It's their -- the regularity of their entry.

If under the Immigration Service's practice, if a commuter is out of employment in this country for a period of six months or more, he is -- he loses his commuter status.

His status is changed, in other words, he loses his status as a lawfully -- as a person -- alien lawfully admitted for permanent residence.

Justice Potter Stewart: Now, what's the statutory justification for that?

Mr. Mark L. Evans: Well, that's not a statutory -- that's a matter of practice, a matter -- the theory has been --

Justice Potter Stewart: But if you're right on your statutory argument in the -- that's wholly unwarranted, isn't it?

Mr. Mark L. Evans: Well, such status having been changed.

This part is where -- that's where it comes from within the statute.

Justice Potter Stewart: What status -- the status says that he's a resident alien, eligible to be a resident alien, is that it?

Mr. Mark L. Evans: That's right.

Justice Potter Stewart: And if he is, he is.

Mr. Mark L. Evans: Well, eligible --

Justice Potter Stewart: -- as per your argument?

Mr. Mark L. Evans: He has the privilege of establishing a permanent residence --

Justice Potter Stewart: Yes.

Mr. Mark L. Evans: -- in this country.

The Immigration Service through its Board of Immigration Appeals early on concluded that the touchstone of a commuter's privilege is his employment in this country.

That's what -- that's -- that may even be the language they used.

And therefore, if that touchstone disappears, their status disappears.

It has grown up as the practice within the Service and I don't know whether the courts have ever considered or not, but that is the -- that is the way it's --

Justice Potter Stewart: But your whole argument, as I understand it is that a resident alien doesn't mean that.

It means somebody eligible to be a resident alien in that status?

Mr. Mark L. Evans: Yeah, but --

Justice Potter Stewart: That's the keystone, isn't it --?

Mr. Mark L. Evans: Yes.

Justice Potter Stewart: -- of your argument?

Mr. Mark L. Evans: Well, eligible to reside permanently in the Untied States.

Justice Potter Stewart: That's what I mean.

Mr. Mark L. Evans: Right.

Justice Potter Stewart: Well, that's what I call a resident alien --

Mr. Mark L. Evans: Yes.

Justice Potter Stewart: -- that's slightly wrong, but eligible to be a resident alien --

Mr. Mark L. Evans: But that -- that eligibility is not --

Justice Potter Stewart: And if he is --

Mr. Mark L. Evans: -- not permanent.

That eligibility is not permanent even for those who reside in this country permanently.

Those who come as immigrants and reside for ten years --

Justice Potter Stewart: Uh-huh.

Mr. Mark L. Evans: -- and leave for five years as aliens, lose their status and their ability to come back --

Justice Potter Stewart: And that is the matter --

Mr. Mark L. Evans: -- with an informal document.

Justice Potter Stewart: That is a matter of statute, is it not?

Mr. Mark L. Evans: I don't believe so.

I believe, it's implemented by the regulations.

The regulations are an 8 CFR 211 (b) and they specify what you have to do if you are a resident alien who needs --

Justice Potter Stewart: In order to maintain your status.

Mr. Mark L. Evans: If you're leaving for a period of more than a year, you are -- I guess, it's up to a year, you have to obtain a reentry permit, at least that's what the regulation says.

As a matter of fact the reentry permit, if you are leaving for that shorter time is the green card, but 211 (b) by the way is set forth in the back of our --

Justice Potter Stewart: -- page 80.

Mr. Mark L. Evans: But this is the administrative interpretation implementation of the phrase in the statute, “such status not having changed.”

If a resident alien is out of the country for longer than the period established by these regulations, he loses his privilege of returning to the country on the basis of informal documentations, i.e., a reentry permit or a green card as opposed to a new immigrant visa.

Justice Harry A. Blackmun: Mr. Evans, as a practical matter, how does the Service stay on top of this continuing employment?

Mr. Mark L. Evans: Well, I satisfied my curiosity about that myself and apparently, the commuters are identified by certain markings on the green card and to the green card is attached a form upon which information is listed concerning the last entry and concerning -- well, I gather that what is done is that the -- there are indications in code made on these attachments that indicate when it was he was last exhibited evidence of employment.

And when the appropriate period of time is expired, they warned him that the next entry will require new evidence of employment and if he fails to present that evidence the next time, he is not permitted to enter.

Justice Harry A. Blackmun: Well, take a seasonal worker moving north during the season, he gets up to the State of Washington and the apple crop for some reason is late, so he sits around for a month, does he become ineligible because of that?

Mr. Mark L. Evans: It's only an absence from the country without employment, that's the key to ineligibility.

He could stay in the country forever for his life at that point.

Justice Harry A. Blackmun: Because at the end of the season, the seasonal commuter when he goes back to Mexico is without employment, is he not?

Mr. Mark L. Evans: When he goes back to Mexico?

Justice Harry A. Blackmun: Yes.

Mr. Mark L. Evans: Yes, but he's -- if he's out of employment for longer than six months, he cannot reenter as a commuter.

He must -- if he enters at all, enter with a new immigrant visa.

It's the only those seasonal commuters whose absence from this country is less than -- for less than six months at a time.

That is as I indicate there maybe two seasons, a planting season and the harvesting season.

They maybe here for several months at each occasion, but they may -- they will fall at periods for less than six months between entries.

Chief Justice Warren E. Burger: Somewhere in the briefs here, there seems to be some reliance and I think in the Court of Appeals opinion, on the fact that certain interpretations of these regulations and practices might jeopardize our relations with Mexico and Canada.

Did the state -- does this record show that the State Department took any position on that?

Mr. Mark L. Evans: Yes, the record contains an affidavit by the Secretary of State Rogers, which appears in the Appendix of the petition at page 38-40.

Chief Justice Warren E. Burger: Not in the --

Mr. Mark L. Evans: That is in the record.

Chief Justice Warren E. Burger: Not in the Appendix to the brief?

Mr. Mark L. Evans: No, it's in the Appendix to the petition.

Justice Byron R. White: When does that happen?

Mr. Mark L. Evans: It was sworn to on the 21st of April, 1970.

We indicate in our brief that we have consulted with the State Department in the time we prepared the brief and we're told that if the matter became important at some point that they would consider submitting a fresh affidavit.

The same --

Justice Byron R. White: What was that?

Mr. Mark L. Evans: Same what?

Is that -- reaching the same conclusions?

The same conclusions and the same concerns of State Department have been expressed for many, many years whenever the issue has come up.

As long ago, I remember in the -- at some point in legislative history of some section, an affidavit or a letter from Secretary of State, Cordell Hull.

In the earlier litigation of the Ninth Circuit, there was an affidavit there too.

There was also an affidavit I believe in 1964 when a case was brought challenging the same practice but was dismissed on the basis of standing.

There too, an affidavit was submitted, I believe, by Secretary of State, Ross.

So it's not -- it's not something that is varied, it's something that has been consistent.

It's not necessarily in other opposing opposition to any change in the practice.

What it is, is a strong feeling that a sudden, as this affidavit states, a sudden judicial termination of the practice which would affect existing commuters, could have a severe impact in our relations with our neighbors.

Justice Harry A. Blackmun: Well, that's 4-years-old now, so it isn't so sudden as --

Mr. Mark L. Evans: Well, it isn't so sudden, but it would be sudden in the sense that there'd be no phase-out period, which is one of the proposals that is before Congress.

Justice Harry A. Blackmun: I take it, but even though this affidavit is 4-years-old, it's still the position of State Department?

Mr. Mark L. Evans: That is our information, yes, as of the time that the brief was prepared.

Justice Byron R. White: Was the decision below stayed with respect to seasonal --

Mr. Mark L. Evans: I believe that the -- there's no stay that I know of, but I believe --

Justice Byron R. White: So the practice is terminated?

Mr. Mark L. Evans: No, I don't -- the opinion --

Justice Byron R. White: The Service isn't the main --

Mr. Mark L. Evans: Well, the Court of Appeals judgment remanded the case to District Court for further proceedings consistent with its opinion.

So far as I know, no further proceedings were instituted because of the pendency of this case in this Court.

So, there's been no final judgment entered directing the Service to pick up the green cards for seasonal commuters.

Justice Byron R. White: Even without to stay?

Mr. Mark L. Evans: Even without to stay.

Justice Byron R. White: All the mandated the issue--

Mr. Mark L. Evans: I believe, the mandate has, but if you know, I believe that it's not improper for a district judge in these circumstances to wait until the litigation has come to its final conclusion when there's litigations pending in this Court.

Chief Justice Warren E. Burger: Mr. Terris?

Argument of Bruce J. Terris

Mr. Bruce J. Terris: Mr. Chief Justice, may it please the Court.

Perhaps, the most important purpose of the immigration laws is to protect domestic labor and if either commuters are non-immigrants or they are immigrants who need immigrant visas it is undisputed that they cannot come into the United States.

And the reason they can't come into the United States is because in either of those eventualities, they need a certification by the Department of Labor, which states that they are not domestic workers available to carry out that work.

And in fact, the Department of Labor has determined, there is domestic labor available to carry out the work of agricultural labor.

Now, it is possible that automobile workers or workers in other kinds of jobs, could come into the United States, either as non-immigrants or as immigrants needing immigrant visas, if in fact they were not -- there was not domestic labor available to do the work that they were seeking to do.

But this case involves agricultural labor and it is undisputed, there is ample domestic agricultural labor.

Our basic position in this case is that the statutory language is absolutely clear.

We do not rely on the legislative history.

hat we do argue is that such legislative history is there is, supports our position.

The legislative history is very scant.

The 1950 report is not an affirmation that the commuter practice was legal.

It is part of a lengthy description of existing immigration practices and so what it did is describe and describe accurately that commuters were entering the United States.

I might say daily commuters at that time, there were no appreciable number of seasonal commuters.

Chief Justice Warren E. Burger: Well, if it doesn't have, in that effect, is there something in the nature of acquiescence here --

Mr. Bruce J. Terris: Your Honor --

Chief Justice Warren E. Burger: In the practice with -- it having been described by the committee to the Congress?

Mr. Bruce J. Terris: I think that is really the government's position Your Honor.

Chief Justice Warren E. Burger: They didn't describe it that way though, did they?

Mr. Bruce J. Terris: No, they didn't.

But I think that's -- I think that that's the heart of the government's argument.

It's the -- let me come back to that in a moment.

The government in its lengthy brief and in its submission, it doesn't address the Service's own description of what the commuter practice is all about.

The Service admits that the commuter practice is an amiable fiction.

It does not fit within statutory language.

It is said that over and over again and it's cited on pages 45 to 47 of our brief, their description of what the commuter practice is about.

And so despite the effort now to try to fit it within some statutory language, I think, it's a fair statement that it doesn't fit very well, if it all, within any statute.

The basic argument of the government is that this is going on for a long time.

Congress has not changed it.

There had been various Bills before Congress at different times to change it and that that ought be reason enough to allow the practice to continue.

Justice Byron R. White: Mr. Terris, a 140?

Mr. Bruce J. Terris: No, no, 45.

Chief Justice Warren E. Burger: We were just counting your pages.

Mr. Bruce J. Terris: For example, Mr. Gordon, the general counsel of the Service says, the commuter status and I'm quoting “the devise of convenience” “never specifically authorized by statute.”

There are lots of other statements of that kind and the most frequent description short form is that it's an amiable fiction.

Of course, how amiable it is really depends on one's point of view in the litigation.

Let me go briefly through what our statutory argument is, using the same at the back of the government's brief starting on page 79.

First of all we contend, under Section 211 (b), and that's the starting point, if they cannot come within Section 211 (b), then they have to have immigrant visas.

Now, 211 (b) starts out by saying that they have to be “returning resident immigrants.”

Now the government admits they're not residents.

Now, it's interesting what the government does to -- let me just state briefly what the statute says about residence.

Residence is defined in the Act and I quote “as the principal, actual dwelling place in fact without regard to intent.”

Justice William H. Rehnquist: When you say returning resident immigrants quoting from Section 211, immediately after --

Mr. Bruce J. Terris: Yes.

Justice William H. Rehnquist: -- it's defined in Section 101 (a) 27 (b).

Mr. Bruce J. Terris: I was coming immediately to that Your Honor.

Justice William H. Rehnquist: Okay, go ahead.

Mr. Bruce J. Terris: The government argues that the defined in Section 101 (a) 27 (b) means that you look solely to Section 101 (a) 27 (b), and that that definition becomes the only specification that has to be satisfied.

I suggest at the very least, 211 (b) means that Section 101 (a) 27 (b) is intended to be a definition of returning resident immigrants, and that it makes extremely little sense to then read Section 101 (a) 27 (b) to include non-residents.

That what they've in effect done is read out of the statute entirely, the phrase resident in 211 (b).

Now, the Court of Appeals agreed with our position insofar as it was dealing with daily commuters, I mean, seasonal commuters.

But it said as to daily commuters, the daily commuters might -- could treat their place of employment as their place of residence.

We submit that that is directly inconsistent with the definition of residence in the statute, and residence is explicitly defined as I've said to be principal, actual dwelling place in fact without regard to intent.

Now, it seems to me very clear that a place of employment is not a principal, actual dwelling place in fact.

The Court of Appeals also said that some of these commuters had associations and interests in the United States.

Chief Justice Warren E. Burger: Are you addressing that now to the seasonal or to the daily or to both?

Mr. Bruce J. Terris: I'm addressing daily because the Court or Appeals for some reason, which isn't entirely clear, did not make the same type of argument for seasonals.

Chief Justice Warren E. Burger: Do you think the Court of Appeals cut the baby in half, do you?

Mr. Bruce J. Terris: I think, that's fair Your Honor.

I think, the arguments -- to be frank about it, I think, the arguments in favor of seasonals may, if anything be stronger than for dailies, because the daily commuter never even puts down his hat in a dwelling place for a moment in the United States.

The seasonal at least, spends a few months in the United States with a place which might be called a temporary residence in some form.

Now, I don't think that comes close to meeting the statutory definition of a principal, actual dwelling place in fact, but it least comes a little closer to it than the daily commuter.

Justice Thurgood Marshall: And it's possible that daily -- they really never paid any taxes of any kind?

Mr. Bruce J. Terris: Well, the daily -- no, the daily commuter Your Honor has to pay taxes insofar as he earns money in United States, but that's --

Justice Thurgood Marshall: Well, that -- aside from that, but they didn't pay any --

Mr. Bruce J. Terris: That's exactly right and they're most -- and the commuters --

Justice Thurgood Marshall: He's not a part of the community?

Mr. Bruce J. Terris: He is not -- they're not eligible for naturalization which is of course the basic reason to have an immigrant visa.

They are rarely subject to the draft over the last few years, they cannot vote, they cannot hold office.

They're essentially for all other purposes, treated as -- totally as aliens from outside the country and the Service for this one purpose has treated them as if they are residents of this country.

Justice Potter Stewart: But do I understand there's one thing on which you agree with the government and only one, that daily commuters and seasonal commuters are really -- stand to fall together in this case?

Mr. Bruce J. Terris: I think that's probably right Your Honor.

The only thing I think that can be said that distinguishes them in the way the Court of Appeals distinguished them, is the difference in the practice, in the length of the practice.

Justice Potter Stewart: Uh-huh.

Mr. Bruce J. Terris: The seasonal commuter practice as the Service has admitted --

Justice Potter Stewart: Is much more recent?

Mr. Bruce J. Terris: Is up until which -- was in the early 60s, there's some dispute whether --

Justice Potter Stewart: And that determination of the Bracero?

Mr. Bruce J. Terris: That's right.

Now, the --

Justice Potter Stewart: Except for some few.

Mr. Bruce J. Terris: Except for a few that existed before that, and the Service I think has admitted that and those quotations are in our brief.

The daily commuter practice --

Justice Byron R. White: Then is the Court of Appeals right about the daily, necessary wrong about the seasonal.

Justice Potter Stewart: Uh-huh.

Justice Byron R. White: A fortiori is wrong about --

Justice Potter Stewart: Uh-huh.

Mr. Bruce J. Terris: Well, --

Justice Byron R. White: Or do you want it -- ?

Mr. Bruce J. Terris: No.

I didn't -- well, it depends on one's -- it depends on why one decides the Court of Appeals was wrong Your Honor.

If the practice, the length of the practice is the crucial question, then the Court of Appeals determination is correct, because there is some --

Chief Justice Warren E. Burger: Well, is the length of the practice leading to an administrative interpretation of its powers rather weighty in the legislative acquiescence doctrine?

Mr. Bruce J. Terris: Yes, it is.

And I'd like to address myself though to the weight of that how long the daily commuter practice has been in existence.

The daily commuter practice, there isn't any doubt, in form, has been in existence since the 1920s.

Now the reason I say, in form, is that up until 1952 and really up until 1968, it was genuinely a pure matter of convenience.

The government relies very heavily on an order and I think it's quoted in the back of its brief, it's -- the Service's general order, I guess maybe it's in the petition but it's a -- no, it's in the back of their brief, General Order number 86 page 83.

That was an order in 1927 which authorized the daily commuter practice.

It authorized it only for non-quota immigrants.

Now, that was critical because what it meant was, this was a pure matter of convenience in the 1920s.

Mexican and Canadian workers have the right to come into the United States as immigrants on a daily basis.

There was no quota.

There was no labor certification necessary.

If they've been required to get an immigrant visa everyday, that would have been an obvious burden on them and on the Service and it made no point because they were entitled to one everyday.

In 1952 for the first time, there were substantive requirements put on Mexican and Canadian immigrants coming into the country.

For the first time, the Department of Labor could certify that there were ample workers available, and therefore, the immigrant couldn't come to the United States.

In 1965, that was taken further by saying, unless he found that there were no workers available, then you couldn't come in the United States.

In 1968 for the first time, a quota was imposed on Mexican aliens.

Now, that's the time, this period, whether it's 1968 or 1965 or 1952, one could debate as the crucial date.

But it's one of those dates anyway that is the crucial time when this practice meant something, because what it meant at that time, for the first time, was that this practice was allowed, was being used to evade substantive provisions of the Act.

And that's when, in our view, one should start to date the commuter practice, because up to then, it was a matter of convenience, up to then, it could be called an amiable fiction.

After 1952 is when it had substantive ramifications.

Chief Justice Warren E. Burger: Well, these figures that have been mentioned about the numbers of people involved, of course, don't take into account the illegals that are coming across the southern border particularly --

Mr. Bruce J. Terris: This case does not involve them in anyway Your Honor.

Chief Justice Warren E. Burger: Well, do the number of the illegals over the years have any bearing on what the Service did or how Congress reacted or failed to react?

Mr. Bruce J. Terris: Your Honor, in all the reading I've done on the subject that the illegals has never been considered the same time as this.

I don't believe it's part of the -- that it's been considered at anytime as part of the same subject matter.

I might say on the question of the numbers, the numbers particularly of seasonal is very hotly disputed.

The government's figures of 8,000 coming across the Southwest border, but there was an amicus brief, for example, which has been submitted by the Farm Bureau Federation in this case which has an estimate, I think, in the hundreds of thousands.

It's a matter of very great dispute and the government believes that it has very strong controls in the border and knows how many are coming across.

And both the farm workers and the farmers apparently believe those controls don't really exist and the government doesn't know how many are coming across.

Let me go back to Section 101 (a) 27 (b).

There is one bit of legislative history which the government has referred to, and the Court of Appeals in the Ninth Circuit referred to as being an obscure bit of legislative history.

In 1963, there was a colloquy between the general counsel of the Service and a staff member before subcommittee, the House Judiciary Committee.

The general counsel of the Service said, the commuter practice was not based on Section 101 (a) 27 (b).

He said it did not come within that section, because it was not a temporary visit abroad.

He said, it came within Section 211 (b).

Justice Potter Stewart: That copy as I know is in your brief or somewhere else.

Mr. Bruce J. Terris: That's right.

It's cited on page 33 --

Justice Potter Stewart: 33.

Mr. Bruce J. Terris: -- of our brief.

He said he was relying on Section 211 (b).

In 1965, two years later, in a Bill that obviously came through the House Judiciary Committee, the phraseology of Section 211 (b) was changed, and 211 (b) was modified to refer deliberately and directly to Section 101 (a) 27 (b) which had previously been said, not to allow the commuter practice.

Of course, subsequently to that the Service now says that the language in Section 101 (a) 27 (b), does allow it.

Now we submit that in fact what the Service has done, although its practice may have continued unbroken, its basic legal position has changed completely.

Justice William H. Rehnquist: Well, does the record show about the standing of your clients in this case Mr. Terris?

Mr. Bruce J. Terris: Standing was litigated Your Honor and the District Court found that they did have standing.

Justice William H. Rehnquist: Well, what does the record show factually?

Mr. Bruce J. Terris: The only -- since this was -- there was no trial of any kind, either on the merits around them or on any jurisdictional questions, all it has is the allegations that --

Justice William H. Rehnquist: Well those are taken as true I think.

Mr. Bruce J. Terris: That's right, but the alleged --

Justice William H. Rehnquist: -- what they alleged?

Mr. Bruce J. Terris: Well, there were two individual plaintiffs in the Farm Workers Organizing Committee.

The Farm Workers Organizing Committee, of course, represents domestic farm workers in the Southwest.

The two individual people were farm workers, one was a US citizen and one was an actual resident alien of the Southwest.

The intervenors were those people who were all from California.

The intervenors were farm workers, domestic farm workers in Texas.

Justice William H. Rehnquist: All of them employed?

Mr. Bruce J. Terris: Yes.

They were all -- well, there was no specific allegation Your Honor.

They alleged that they were farm workers.

Justice William H. Rehnquist: And it was a class action?

Mr. Bruce J. Terris: Yes, but there was never any --

Justice William H. Rehnquist: Never any determination -- was it a class action on behalf of all citizens, was it?

Mr. Bruce J. Terris: Some farm workers, originally it was farm workers in California than the intervenors, who was farm workers in Texas.

Now in order to fit within Section 101 (a) 27 (b), the commuters have to be lawfully admitted for permanent residence.

The phrase lawfully admitted for permanent residence is used in a number of other sections of the Act.

In all the other sections of the Act, I think, it's fair to say that it would be almost incredible for Congress to have intended, to have included commuters.

Let me just give one example.

If commuters are lawfully admitted for permanent residence, it comes within a provision which states that a spouse, parent, or child of a citizen or of an alien lawfully admitted for permanent residence, can enter the United States without a Department of Labor certification that no domestic workers are available.

Now, what this would mean is that these commuters could bring in any of their relatives, including their children, and one would have built into this system, a permanent exemption from the Labor certification requirements, because the exemption could be passed on from generation to generation.

Now, the government says, those issues as to the other sections can be put aside for the purposes of this litigation and they can be determined some other time.

But the statute says that this definition of lawfully admitted for permanent residence is a definition for the entire statute.

And the House report says, that's why this very definition is so important, because it does have many ramifications.

And we submit that whatever rule is adopted in this case, has got to be a rule that will apply to lawfully admitted for permanent residence for all of its uses in the statute.

Let me go to the second part of Section 101 (a) 27 (b) which relates to returning from a temporary visit abroad and the Chief Justice had a colloquy with counsel about, whether it goes to a visit into the Southern France.

That phrase actually dates back in the statute until 1921, and there have been several cases decided under it and they are cited in our brief.

And those cases may clear that that visit to Southern France is exactly what the intent was of that kind -- of that provision.

It was intended and this is what the Secretary of Labor determined back in 1924 and that was the time when he was the enforcer of the immigration laws and by number of other courts to apply only to persons with domiciles in this country, not just residence, domicile.

Now, it's obvious that commuters not only don't have residences, but they clearly don't have domiciles here either.

Let me turn now to the regulations.

We submit that even if and of course we argue that they don't, but even if they came within Section 211 (b) and Section 101 (a) 27 (b), they still wouldn't be admissible.

The regulations somehow were even stronger than the statute, They allow a person to come -- an alien to come in without an immigrant visa and I'm quoting “only if they are returning to an un-relinquished, lawful, permanent residence in the United States after a temporary absence abroad.”

Now, it's hard to imagine how anybody could write language which is more clear that you've got to have residence in this country.

Justice Byron R. White: What was the date on that?

Mr. Bruce J. Terris: 1957.

They came after the 1952 statute.

The interesting thing is Your Honor --

Justice Byron R. White: That the filing was revoked?

Mr. Bruce J. Terris: Until 1952, there were regulations specifically allowing commuters to come in without an immigration visa.

Those were revoked after the 1952 statute.

There was no clear replacement as to commuters.

Then in 1957, this language was adopted.

Justice Potter Stewart: Now, where can we find this language, is it at the back of or in your brief?

Justice Byron R. White: It's got to be in --

Mr. Bruce J. Terris: It's in our --

Justice Byron R. White: -- in your brief?

Mr. Bruce J. Terris: It's in our brief, I know, maybe in the government's too, it's at the bottom of page 5 of our brief.

And that phrase by the way occurs on seven separate times in that section in the following section of the regulations.

Justice Potter Stewart: Not inadvertence.

Mr. Bruce J. Terris: Yes.

It's obviously not inadvertence.

Justice Potter Stewart: It's from a -- that's from a court opinion, I take it, un-relinquished --

Mr. Bruce J. Terris: No, I think that was actually first composed by the -- in the regulations Your Honor at least I don't know of the previous use of that phrase.

Now up until this Court, the government has consistently contended, that has consistently admitted that commuters don't come within that language.

They admitted that in the courts below in this case and in Gooch v. Clark which is the prior Ninth Circuit case on this subject, they not only admitted it, but the Court of Appeals agreed with them.

The government argued up to now, that it didn't matter whether they came within the regulations.

It said that that regulation was only just permissive of what -- of when people could come in, that outside of any regulations, they can allow people into the country under the practice.

Now that position, I think, is so flagrantly wrong, that's why it's been abandoned.

It's wrong because Section 211 (b) makes very clear that the only basis for coming into the country without an immigrant visa is pursuant to regulations, and I think that that is clearly right.

I think that's the government's position today.

Now the Government therefore goes back to the language of the regulations, and what it says is, despite that language of un-relinquished, lawful, permanent residence, it doesn't mean that.

It says it's not artfully drawn, that what the regulations and that's their word, that what the regulations really mean is the status of coming in to the United States, but we submit that that's simply rewriting the regulations that the regulations are clear on their face.

Let me turn now to our argument that these -- that most of these commuters are really non-immigrants.

When I say most, commuters who come to this country, took permanent employment, are not non-immigrants.

And when I say that, I'm now talking essentially of nonagricultural commuters.

Nonagricultural commuters who come to an automobile plant in Detroit or some other plant all through the year to permanent employment, are not non-immigrants.

That is clear under the statute.

Justice William H. Rehnquist: Well, how about an agricultural worker goes from Mexicali to Calexico?

Isn't he in the same spot?

Mr. Bruce J. Terris: Agricultural workers, I think, were perhaps some rare exception, that don't -- do not have permanent employments in this country.

They come for a few months and generally not even to the same employer as has been described before, they have a lot of different employers.

They only come for a few months of the year.

Then maybe a few months later on.

I think it's very clear to what they -- they come to the United States temporarily.

They do not come for permanent employment.

Now Section 101 (a) 15 (H) --

Chief Justice Warren E. Burger: Where do you find in the regulation this sort of the statute to support for the distinction you make between available works for the Ford Motor Company, let's just say in Michigan coming from across the border and some other kind of a worker.

Mr. Bruce J. Terris: Mr. Chief Justice, our argument as to if they are an immigrant, there is no distinction.

I want to be clear about that.

The argument I've made up --

Justice Byron R. White: (Inaudible) require both?

Mr. Bruce J. Terris: Yes.

Yes, sir.

The only difference that would apply to them is that an automobile worker might and I don't know the answer to this might be able to come in the United States because --

Justice Byron R. White: (Inaudible)

Mr. Bruce J. Terris: No, as an immigrant because he maybe able to get a Department of Labor certification.

Chief Justice Warren E. Burger: The shortage certification.

Mr. Bruce J. Terris: That's right.

So that's the only difference if we assume that they are immigrants.

If they are non-immigrants, my argument is based squarely on the language of subsection (H), and let me just -- it's -- well, let me give the exact citation.

It's on page 79 of the government's brief, it's 101 (a) 15 (H).

That states that a person is a non-immigrant, that an alien having a residence in a foreign country, that's obviously a commuter --

Chief Justice Warren E. Burger: Let us spot the exact --

Mr. Bruce J. Terris: Okay.

Chief Justice Warren E. Burger: -- place that will find your --

Mr. Bruce J. Terris: It's right about in the middle of the page --

Chief Justice Warren E. Burger: Alright --

Mr. Bruce J. Terris: An alien having a residence in a foreign country which he has no intention of abandoning, that so far is a commuter.

Then we drop down to (ii), who is coming temporarily to the United States, he surely is coming just temporarily to perform temporary services or labor.

Now, that requires both that you come temporarily and that the services or labor be temporary.

It's been interpreted by the Service and we do agree with this that if a person comes to the United States temporarily but to carry out permanent services or labor, he is not a non-immigrant.

So a daily commuter who comes across the border daily and that his visit is temporary but he, if he works in an automobile plant on a permanent basis, he's not a non-immigrant.

I think, we --

Justice William H. Rehnquist: How can you come temporarily to perform permanent services?

Mr. Bruce J. Terris: Well, you come many times temporarily but the job is a permanent one Your Honor.

That is the Service's interpretation of that phrase to and we do agree with it.

Now what the Service says, however, is that's not the end of the definition.

That the end of the definition is, if unemployed person is capable of performing such service or labor, cannot be found in this country.

Now, we submit that isn't part of the definition.

That the definition is the description of the people themselves and not the rule which is clearly -- which is really an analogous to the rule for immigrants which is in Section 212 (a) (14), which says to an immigrant that if you can't get a Department of Labor certification, you can't come in to this country.

This is the analogous provision for non-immigrants.

If the Service's position were correct, it would mean that different kinds of people coming for in the same way, same temporary basis, some of them could come in as non-immigrants.

Some of them would be non-immigrants, some of them would not be non-immigrants, purely depending on the kind of occupation that was involved and even the time a year, there would be no in effect -- in effect there would be no general classification of non-immigrants.

And we submit that the definition is the beginning of this phrase, the latter is the condition upon which you can enter.

Chief Justice Warren E. Burger: You really -- your argument, if I've followed you and I won't vouch for that at all, if I've followed it, there are really three categories, the daily commuter, the seasonal fellow and then the man who comes everyday on a substantially permanent basis?

Mr. Bruce J. Terris: I think, that's correct.

Chief Justice Warren E. Burger: Three different categories?

Mr. Bruce J. Terris: I think, that's really correct.

Chief Justice Warren E. Burger: And do you think the first two categories must stand or fall together and the third is outside the reach of this holding, is that correct?

Is the third within the Court of Appeals' holding?

Mr. Bruce J. Terris: The reason the third is -- I think, it's fair to say that the third is like all other daily commuters allowed to keep coming into the United States.

The third category that Your Honor stated correctly is part of the daily commuter category.

There are no seasonal commuters that come -- by definition, a seasonal commuter isn't -- can't be permanent.

And so it's part of the dailies.

We have never litigated anybody, of course, but the agricultural workers.

And so --

Chief Justice Warren E. Burger: So this third category is outside -- outside of appeal?

Mr. Bruce J. Terris: I think, it's really fair to say it's outside the litigation.

Now, I don't want to, however, ignore it such that an effect, I say that don't think about it as --

Chief Justice Warren E. Burger: Did the Court of Appeals deal with it?

Mr. Bruce J. Terris: No Your Honor.

Let me tell you -- let me explain what happened on it.

The Court of Appeals only dealt with these first two categories, seasonal and dailies.

We then said, we thought, based on their wording in describing dailies, we thought that what -- the way they described dailies that they meant the dailies who have permanent jobs can continue to enter the United States, but they didn't meant to allow dailies who were agricultural workers to do so, and we asked for clarification in a motion after the judgment.

The Court of Appeals refused to give clarification and said that it had given -- it had explained itself enough and that the district court could deal with that question on remand on the basis of the Court of Appeals' opinion.

Justice William J. Brennan: In other words, we're right and we don't explain it.

Mr. Bruce J. Terris: Well, I rather not categorize that Your Honor.

Thank you.

Chief Justice Warren E. Burger: Very well, thank you.

You've got about three minutes.

Do you think you can clear this all up in three minutes for us?

Rebuttal of Mark L. Evans

Mr. Mark L. Evans: Surely.

I thought I've done that originally.

Chief Justice Warren E. Burger: Well, then perhaps, your brother confused us.

Mr. Mark L. Evans: There is -- addressing this last issue first, no legal difference between any of these categories, call them three or call them two.

I understand there to be two.

A daily commuter is someone who comes to this country regularly on a day-by-day basis.

As I say the lines are frequently hard to draw.

Sometimes they come twice a week or three times a week rather than daily, but they are regular commuters.

Some of them come to permanent job.

Some of them come to look for employment everyday or to look for a temporary employment.

It matters not, because the only reason that would make any difference is if you agree with the plaintiffs' contention here that these people must be treated as non-immigrants if they're coming to perform temporary service.

It just doesn't work.

The definition includes what Mr. Terris would like to read as an exclusion.

It is part of the definition that if there are people available to perform this labor, these people are not non-immigrants, they're immigrants, and the only way they can come into this country is either with an immigrant visa or with an informal documentation like a green card.

So there are two classes as I see it.

I think, they are indistinguishable.

The government's position as I understood Mr. Terris is to be is that they stand or fall together.

The only conceivable distinction aside from the notion that one class is non-immigrants and the other isn't is that one practice has lasted longer.

But the practice has not -- that seasonal commuter practice grew up really at a time after a series of temporary measures for bringing a temporary labor into the country had expired and it was -- it's not a new legal theory, it was just a new category of workers who took advantage of what was already there for their benefit already.

And I should address briefly also --

Justice Byron R. White: -- your view is, what was right about the seasonal, they were wrong about the dailies?

Mr. Mark L. Evans: That's right.

If they are correct on one, I think, they are wrong on the other.

I think, the decision cannot be reconciled of the two.

Chief Justice Warren E. Burger: And you reject the idea of a third category?

Mr. Mark L. Evans: That's right.

Chief Justice Warren E. Burger: You say the third category belongs within the first?

Mr. Mark L. Evans: Yes.

The daily commuter, whether he has permanent job here or whether he comes everyday looking for job.

Chief Justice Warren E. Burger: And in your view, he is a daily commuter, if he comes over to sell some merchandise for three days a week in the United States and three days a week in Canada.

Mr. Mark L. Evans: That's right.

Chief Justice Warren E. Burger: Regular commuter might be a better name for him than --

Mr. Mark L. Evans: Well, I suppose if, you know, now that the problem has been explored through litigation that the regulations about which we have some reason to be embarrassed might well be amended and the Service would like to amend those regulations --

Chief Justice Warren E. Burger: And you wish to defer on decision until you have that opportunity?

Mr. Mark L. Evans: Well, I might say that it was at one point considered whether the regulations should be amended to correct the ambiguity, but it was determined, I think, quite rightly that it would be improper to make such an amendment, while the case is in litigation, and there has been litigation over this issue ever since 1966 when the case was instituted in the Ninth Circuit, Gooch against Clark.

There's never been a time when we've had a chance to make any amendments without interfering with ongoing litigation.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Featured:

Espinoza v. Farah Mfg. Co. - Oral Argument, Part 2

Tue, 03 Feb 2009 02:39:22 +0000

Case:

Espinoza v. Farah Mfg. Co.

Media File:

72-671_19731011-argument-2.mp3

Featured:

Espinoza v. Farah Mfg. Co. - Oral Argument, Part 1

Tue, 03 Feb 2009 02:39:24 +0000

Case:

Espinoza v. Farah Mfg. Co.

Media File:

72-671_19731010-argument-1.mp3

Featured:

In Re Griffiths - Oral Argument

Thu, 23 Aug 2012 18:19:57 +0000

Case:

In Re Griffiths

Media File:

71-1336_19730109-argument.mp3

Related Transcript:

71-1336_19730109-argument

Transcript:

Argument of R. David Broiles

Chief Justice Warren E. Burger: This morning, the number 71-1336 in matter of the application of Griffiths for admission to the Bar.

Mr. Broiles, you may proceed whenever you’re ready.

Mr. R. David Broiles: Mr. Chief Justice, may it please the Court.

Fre Le Poole Griffiths was born in the Netherlands in 1940.

Immigrated to this country on a temporary visa in 1965.

Obtained the status of a permanent resident alien after she acquired work in this country in the State of New York in 1965.

She continued to work in this country and was married in 1967, and moved to Washington, D.C.

After residing in Washington, D.C. approximately two years, she moved to New Haven, Connecticut where she was admitted to Yale Law School as a second year law student.

She completed her studies for an LLB degree at Yale Law School and graduated from Yale Law School in June of 1969.

She has the equivalent of a BA in Law from the University of Leiden in the Netherlands, and LLB in Law from the University of Amsterdam in the Netherlands, and an LLB in Law from Yale University in New Haven, Connecticut.

She is concededly, in all respects, qualified for admission to the Bar examination in the State of Connecticut.

But for the fact that Rule 8 (1) of the Superior Court rules of the State of Connecticut requires that all applicants for admission to the Bar examination, be citizens of the United States.

Fre Griffiths is not a citizen of United States and did not at the time for application intend to become a citizen of the United States.

She was at the time of her application, a resident within the residency requirements of the State of Connecticut for admission to the Bar.

Justice Potter Stewart: Does the record indicate that why she doesn’t want to -- why she does not intend to become citizen of the United States?

Mr. R. David Broiles: This was the fourth hearing that we’ve attended and you’re the first person to ask.

The record does not so indicate why she does not intend to become a citizen of the United States.

If you like for me to give you the reason, I would --

Justice Potter Stewart: Well, does the record show whether or not she intends to remain in the United States and particularly in Connecticut?

Mr. R. David Broiles: The record does not show whether she intends to remain in the United States or in the State of Connecticut.

She was not asked that question.

She in fact, does intend to reside in the United States as with her husband.

Justice Potter Stewart: Indefinitely?

Mr. R. David Broiles: Yes and she does intend to reside in the United States indefinitely.

Justice Potter Stewart: And clearly intends not to become a citizen?

Mr. R. David Broiles: She does not at this time intend to become a citizen.

Her feeling is that after 25 years of living in Holland that she cannot give that up at this particular time.

Dual citizenship is not a possibility.

It would be as if we immigrated to Holland, say we married a Dutch citizen and I was living in Holland and my wife was working there, and in order to practice my profession as a lawyer, I was required to give up my citizenship in the United States.

My failure to do that and I would not give up my citizenship in the United States to be a Dutch citizen would not be because of any lack of loyalty to Holland, where I’m resident thereof or because I intended to violate any laws of Holland or because I could not abide by the constitutional laws of Holland.

It will be because of the feeling that I have after having my family and resided in the United States for 25 years.

That sort of personal feeling is what Mrs. Griffiths has and she doesn’t feel (Voice Overlap).

Justice Potter Stewart: Just to have a personal feeling or one never knows about the future, about the relationships for example between our country and Holland, or any other nation.

Mr. R. David Broiles: No there are contingencies (Voice Overlap)

Justice Potter Stewart: And as long as that personal feeling of loyalty exists to the nation of which you’re now a citizen, that’s I suppose what Connecticut was trying to get at, isn’t it?

Mr. R. David Broiles: I think it is not what Connecticut is trying to get at.

Connecticut -- people have personal feelings, for example, with regards to their citizenship in the State in the United States, by the virtue of the Fourteenth Amendment, we have a dual citizenship to a State and to the United States if we are a citizens (Voice Overlap).

Justice Potter Stewart: But in international affairs under our Constitution and all those matters, you’ll turn over to the National Government.

States don’t have foreign policies with other nations.

That’s one of the reasons our Constitution was adopted.

Mr. R. David Broiles: That’s correct.

Justice Potter Stewart: So that’s not (Voice Overlap).

Mr. R. David Broiles: Well, to contingency -- if you’re asking, is there a contingency that she might go back to Holland.

That contingency, in fact, exists as much as the contingency that someone born in California, who is admitted to practice law in Connecticut, might go back to California, that someone who’s a citizen of the United States might choose to re-announce their United States citizenship and move to Israel.

That someone might die, that someone might commit a breach to the Canons of Ethics as a member of the Bar and be disqualified.

There are all sorts of disabling contingencies that one can have and certainly one of them would be that she can go to Holland.

That’s a contingency that her husband also is subject to, that anyone would be subject to in leaving United States.

I do not think it is what the State of Connecticut is getting at by requiring United States citizenship of all members or applicants to the Bar though.

Chief Justice Warren E. Burger: Mr. Broiles, to pursue your hypothetical, if you are moving to Holland and having a Dutch wife, as a member of the Bar of the United -- some one of the States of the United States, do you think you’d have a right to be a judge in Holland?

Mr. R. David Broiles: No, I would not have a right to be a judge in Holland though it is interesting that my client, who is not a citizen to United States, and is a citizen of Holland, would on our research, have a right to be the Chief Justice of the United States Supreme Court.

Our research tells me that in Holland that is not the case.

I’m telling you what my client tells me about Dutch law.

I don’t purport to know anything about it other than that.

We have not found any disabling provisions for an alien to be a United States District Court Judge or to be on the Supreme Court of the United States of America.

Justice Byron R. White: We’re going to the constitution (Inaudible) need to be lawyers?

Mr. R. David Broiles: There’s no requirement that a Justice on the Supreme Court be a lawyer.

Justice Harry A. Blackmun: Mr. Broiles, following through with your hypothetical as a matter of curiosity, do you know whether you could be admitted to the Bar of Holland?

Mr. R. David Broiles: According to my client, I could not.

Justice William H. Rehnquist: Without being a Dutch citizen?

Mr. R. David Broiles: Without being a Dutch citizen.

Our research shows that there are very few countries that allow what one would call reciprocity without the requirement of citizenship.

One of the few being Japan, and it is apparently possible in England, but it is not possible according to her in Holland.

Justice Harry A. Blackmun: This is outside the record.

Is your client’s still a resident in Connecticut?

Mr. R. David Broiles: She is presently living in Holland and is coming back Thursday and has the intention of practicing in Connecticut if this opinion is favorable to her.

She went to Holland and have a child.

She now has, since the beginning of this lawsuit has had two children.

Justice Harry A. Blackmun: Well, is the case moot?

Mr. R. David Broiles: No it is not Your Honor.

There is no residency requirement in the State of Connecticut.

Rule 8 (2) requires that you have an intention to reside in the State of Connecticut which she has.

At the time the case was brought up to Court, she’d been a resident of Connecticut for two years.

Justice Byron R. White: So, an intent to reside that means an intent to live in Connecticut and indefinitely.

Mr. R. David Broiles: No, it does not Your Honor.

It means, an intent to reside in Connecticut so long as it takes to become a member of the Bar.

Once one has become a member of the Bar, you need no longer to have to that intent.

For example --

Justice Byron R. White: How can you have an intent?

What does residency mean in Connecticut?

Mr. R. David Broiles: Residency means living there.

Justice Byron R. White: Just being there?

Mr. R. David Broiles: Just being there.

I, for example, I’m a member of the Connecticut Bar, a Commissioner of the Superior Court of the State of Connecticut as I stand here right now.

I have not resided in the State of Connecticut for two years.

I have been to Connecticut only twice in those two years, both times in connection with this lawsuit.

I became a member of the Bar at the State of Connecticut after my graduation from a law school in the State of Connecticut.

No questions were asked to me and no questions are required by the rules in the Superior Court of the State of Connecticut that I intend to permanently reside in the State of Connecticut.

Rule 8 (2) says, “You must either reside in the State of Connecticut or intend to reside in the State of Connecticut.”

It does not require an intention to permanently reside in the State of Connecticut.

I recently --

Justice Potter Stewart: Residence doesn’t mean domicile then?

Mr. R. David Broiles: I think residence in fact does mean just that.

That you are at the time you make application for the admission to the Bar, have the intention to reside.

I take it domicile to mean actually physically be present.

Justice Potter Stewart: Well, also domicile involves an intent to remain there indefinitely.

When I stay on overnight in a hotel in New Haven, that doesn’t make me a resident --

Mr. R. David Broiles: That would not.

Justice Potter Stewart: But if I have the intention residing in Connecticut indefinitely then I am and then domicile depends upon intent?

Mr. R. David Broiles: I think domicile intents (Voice Overlap)

Justice Potter Stewart: (Voice Overlap) intent?

Mr. R. David Broiles: Yes, I don’t think the intent can reasonably said to be indefinitely.

The intent must be to stay there having no particular plans to leave at this time to go some place else.

This is where I am now.

I’m not definitely living some place else.

Justice Byron R. White: That is the -- residency doesn’t even mean that thing?

Justice Potter Stewart: No.

Apparently, no.

Mr. R. David Broiles: No I don’t think so.

I don’t think (Voice Overlap).

Justice Byron R. White: But you could just move to Connecticut for long after you take the exam and leave?

Mr. R. David Broiles: Based on the rules of the State of Connecticut, that is quite right.

That’s (Voice Overlap).

Justice Potter Stewart: So far under your submission in this case, somebody could come from Japan, or Uganda, or Nepal, and just fill out the questionnaire and take the Connecticut Bar exam.

Mr. R. David Broiles: No that’s (Voice Overlap).

Justice Potter Stewart: That’s an absolute constitutional right to do so.

Is that right (Voice Overlap)?

Mr. R. David Broiles: No, that’s absolutely not the position here.

One has to take -- one has not only fill out the questionnaire but be interviewed by the Bar Committee.

Justice Potter Stewart: Alright, is there long enough for an interview.

Mr. R. David Broiles: And the Bar Committee is satisfied to these qualifications.

Justice Potter Stewart: Alright he is found he law school in (Inaudible)

Mr. R. David Broiles: As to his residency in the State of Connecticut then it seems clear under the rule of the State of Connecticut that he’s admissible.

Justice Potter Stewart: Well, except if (Voice Overlap)

Justice Byron R. White: If so required --

Justice Potter Stewart: Constitutionally requires, it’s what you’re saying.

Mr. R. David Broiles: I’m saying that that’s what the rule of the State of Connecticut requires.

Justice Potter Stewart: No.

No, you’re saying what the (Voice Overlap) Constitution requires is that Connecticut must, if a person is otherwise qualified, must let him take the Bar exam whether or not he’s a citizen.

So as I say, you could from India or Ceylon, or Nepal, or Uganda, or Tanzania, and be there long enough for an examination and to show you’ve gone to law school and that Connecticut as constitutionally required, let him take the bar exam and if you passes it, do admit him to the bar of Connecticut, then he can leave the next night and never come back.

Mr. R. David Broiles: That is not my position.

The Constitution does not require that.

The original question asked by you was with regard there was not the purpose to make sure that there was a residency, if the people were residents of the State in which they were lawyers.

In fact, the State of Connecticut does not require more than what you have described.

If the State of Connecticut were to just require a six-month residency requirement that may work well withstand the test of constitutionality.

The New Mexico case which you recently denied cert on --

Justice Potter Stewart: The issue in this case is whether or Connecticut can constitutionally require that a person be a citizen.

Mr. R. David Broiles: That’s correct.

Justice Potter Stewart: And you’ve told this that it doesn’t require that he be domicile in Connecticut.

Therefore it since it doesn’t, then your constitutional claim does come down and does it not to what I suggested in my questions?

Mr. R. David Broiles: It does not.

Justice Potter Stewart: Why not?

Mr. R. David Broiles: Connecticut could require constitutionally.

Justice Potter Stewart: Alright, it could but it hasn’t you told us.

Mr. R. David Broiles: It has not.

If this case, does come down to my client on the Connecticut rule qualify because she wasn’t back in the Connecticut in the opinion of the Board of Bar Examiners, a resident under that rule.

That has been so found and it is not disputed.

That Connecticut has no further requirements other than domicile or intention to be a resident.

In this case is, yes.

Someone could come to Connecticut and stay there, and if the board was satisfied with that (Voice Overlap).

Justice Potter Stewart: He comes from Timbuktu so long as he was there long enough for an interview, and filled out question 8 (2) that he was a resident in Connecticut and intended to stay there then Connecticut couldn’t require that he’d be a citizen?

Mr. R. David Broiles: Connecticut could change its rule and require more about way of residence (Voice Overlap).

Justice Potter Stewart: I thought your claim was that Connecticut could not constitutionally require that a person be a citizen.

Mr. R. David Broiles: It cannot require a citizen.

It can require more by way of residency than it does.

Justice Potter Stewart: But that’s not the issue.

Mr. R. David Broiles: No, that is not the issue.

Justice Potter Stewart: The issue in your case, is whether or not the Constitution compels Connecticut to allow somebody to take its Bar exam even though that person is not a citizen.

Isn’t that what this case is about?

Mr. R. David Broiles: That’s what this case is about.

Justice Thurgood Marshall: Isn’t it true that an existing Connecticut law a man could catch a plane from Anchorage, Alaska, change in New York, go to New Haven take the exam and will be admitted?

Mr. R. David Broiles: That is the way the rule is written, yes, Your Honor.

I did not write the rule nor do I say that (Voice Overlap).

Justice Thurgood Marshall: And go right back to Anchorage?

Mr. R. David Broiles: That is the Statement of the rule of the State of Connecticut.

That is not a constitutional requirement.

Now in this case --

Justice Thurgood Marshall: You say that if somebody came from Canada, did the same thing, he’d be entitled to the same discretion that the person from Anchorage had?

Mr. R. David Broiles: If the Board of Bar Examiners were satisfied that he met the residency requirement under the facts that you stated, he would be certified by the board to that.

That that is a constitutional requirement, I deny.

Justice William H. Rehnquist: Well, Mr. Broiles, basically what you’re saying is that if this sort of fugacious presence is acceptable to the Connecticut Bar examiners on the part to someone coming from Alaska as Mr. Justice Marshall posits, it is a constitutional matter must be acceptable in the same circumstances except that the person comes from Canada or Japan?

Mr. R. David Broiles: I’m not sure I understand it.

If you’re saying that he comes from Virginia for example to Connecticut and establishes residency under the minimum requirements the State of Connecticut presently has, and he should be able to do that with a resident alien status from Canada.

Yes, I am saying that because that’s the Connecticut rule, but I’m not saying that this is a constitutional requirement.

It is not.

They could establish I think a longer residency requirement and stricter standards for residency.

Justice Byron R. White: But in no event, they can condition it being a citizen?

Mr. R. David Broiles: In no event -- may they condition it on being a citizen.

Justice Lewis F. Powell: Mr. Broiles, looking at the other side of this coin, what limitations, if any, are there on the length of time that the petitioner may remain in the United States as an alien?

Mr. R. David Broiles: With regard to constitutional considerations by a Bar Examining Committee?

Justice Lewis F. Powell: No, no, present law -- may an alien remain in United States indefinitely?

Mr. R. David Broiles: My client, as a resident alien, a permanent resident alien may reside in the United States indefinitely.

She is subject to the laws of that right on conditions that do not apply to citizens.

If she is guilty of conduct that is prescribed by the Federal statute, you know, habitual drunkenness, they are spelled out in immigration naturalization, she could still be subject to deportation.

They are certainly less stringent rules than one would expect of a bar association, so that were she guilty of those same acts and misconduct, she should certainly be disbarred before she is deported.

But she is permanently has a right to be here under the present statutory scheme.

Chief Justice Warren E. Burger: That’s because she’s married to citizen, is it?

Mr. R. David Broiles: No, Your Honor.

She in fact got that status before she married a United States citizen.

The -- by virtue or the fact of marrying a United States citizen, she achieves one thing that she did not have earlier and that is that she could become a United States citizen in three years rather than five years.

But she got her permanent resident status prior to marrying a United States citizen.

I’d like to address myself to one inquiry raised by the brief of the State of Connecticut and that is that Graham versus Richardson does not apply in this case with regard to the standard.

That the classification based on alienage is subject to strict judicial scrutiny and that the State of Connecticut must show a compelling interest that this classification is necessary to me.

This is stated on page 5 of the brief of the State of Connecticut where it is held that no inquiry beyond reasonableness is really needed.

The reason that an alienage classification does receive special scrutiny, namely the alien’s non participation in Government fails here because the non participation is a purpose served by the classification.

As I understand that statement, the State of Connecticut is saying that Graham does not apply because of the fact that the very exclusion of aliens from the process of Government is the purpose of the rule.

I would take it that what they mean is that if aliens have the right to vote, there would be no holding by this Court but under the Fourteenth Amendment, all such classifications are subject to strict judicial scrutiny.

I would point out two examples where this is not the case.

That is that the franchise or the right to vote is not the purpose for the strict judicial scrutiny rule.

Children cannot vote and to my knowledge, this Court has not said, that by virtue thereof all classifications with regard to children are subject to the standard in Graham, a strict judicial scrutiny of a necessary and compelling interest.

Secondly, convicted felons cannot vote and I would be surprised if this Court would seriously entertain an attack on the 1968 Crime Control Gun Provisions, that govern felons’ possessions of registered and unregistered firearms on the grounds that they cannot vote.

The reason that classifications based on alienage are subject to the strict judicial scrutiny is because of their analogous characteristic to racial classifications and classifications based on sex.

The State of Connecticut has to show a compelling interest that’s furthered by this classification and that the means are necessary to further this classification.

Justice Byron R. White: Would you -- would your position necessarily outlaw the exclusion of aliens from voting?

Mr. R. David Broiles: It would -- it would not necessarily outlaw it, but I will it this way Your Honor.

The question would be could a prohibition as all the States have, against voting by aliens withstand the test of Graham, that it need a strict --

Justice Byron R. White: What do you think about that?

Mr. R. David Broiles: I think that it cannot.

I think that under the holding in Graham, that the fact that an alien suffers the disabilities must pay the taxes, must be subject to all the laws of the Government, would be a strong argument and that a strong constitutional argument I point in.

Justice Byron R. White: And when that one that you think should be prevail?

Mr. R. David Broiles: I think that on the facts as I understand, it would prevail, yes Your Honor.

Justice Byron R. White: Alright.

If the voting restriction were to be sustained, I presume it might be connected with the idea of excluding aliens from the processes of Government and decision making?

Mr. R. David Broiles: I would take that would one reason.

Justice Byron R. White: And if that were to be sustained, you might be in more trouble -- that you would have a troublesome case here, wouldn’t you?

Mr. R. David Broiles: I would say, it would make my case more troublesome to answer that, yes Your Honor.

Justice Potter Stewart: It’s a little strange to be saying that a classification that is made in the Constitution itself in many different provisions of the Constitution itself, i.e. between citizens and other persons who are not citizens within the United States, that classification is constitutionally suspect.

The Fourteenth Amendment itself makes that, makes those classifications.

The Fifteen Amendment is the right of to franchise to citizens, not to persons.

The Fourteenth Amendment gives some protections to citizens that it doesn’t give to persons.

It gives some to all persons and there are other places all through the Constitution where you find that distinction.

And isn’t it a little odd, you suppose to be saying that that’s constitutionally suspect classification?

Mr. R. David Broiles: No, I think so, both.

Whether yes and no by some examples Your Honor.

I think there is a difference under -- even if the Court went as far as Mr. Justice White as said that these rules might compel it there is still a difference between an alien and a citizen.

The Fourteenth Amendment talks about the privileges and immunities of citizenship.

A citizen by the virtue of the Fourteenth Amendment has the privilege permanently to reside in the State as a citizen of that State, no matter what his conduct maybe, and is immune from the laws of citizenship, or from deportation from the United States, no matter what his conduct maybe or what we may think of him.

That is not the case.

That is not a privilege or immunity of an alien.

An alien is entitled only to due process and equal protection of the laws.

Justice Byron R. White: But he’s entitled to those same rights as it gives the State, isn’t it?

Mr. R. David Broiles: Equal protection of the laws and due process or from deportation?

Justice Byron R. White: From what you just said, yes.

Mr. R. David Broiles: A State cannot take away if he is entitled, cannot have that taken away.

Justice Byron R. White: State can’t chase him out anyway?

Mr. R. David Broiles: That’s true, State cannot chase him out.

Justice Potter Stewart: Thirteenth Amendment, protects all (Inaudible) you were saying.

The protection of Fifteenth Amendment stand --

Mr. R. David Broiles: I realize the Constitution is fully distinguishable.

There are jobs (Voice Overlap).

Justice Potter Stewart: Precisely this distinction --

Mr. R. David Broiles: Yes.

Justice Potter Stewart: -- is what is my point.

Many other distinctions of course as well but precisely the one that you’re not telling us is suspect under the Constitution.

Mr. R. David Broiles: Would have to meet the test that’s laid down in Graham of showing a compelling interest, yes.

That is not the case that has to be decided here.

What the record might show with regard the voting is another matter.

What the record shows in this case, with regard to attorneys is quite different.

This case is one step removed from the decision you must make in the case that was argued yesterday, Sugarman.

We do not concede that our client has the status of a governmental official.

She is not asking to be a member in the Government.

She is asking to be an attorney in the State of Connecticut.

The State seeks to analogize her to a governmental official.

They seek to analogize her by a virtue of the position that she would hold as an attorney in Connecticut, as a Commissioner of the Superior Court.

The State argues this on what they call a self-evident proposition that after all, the Government of the State of Connecticut has a right to limit its positions to citizens thereof.

In fact, the State of Connecticut does not limit positions for attorneys or commissioners of Superior Courts to citizens of the State of Connecticut.

I am both an attorney in the State of Connecticut, I am a commissioner of the Superior Court, I cannot vote in the State of Connecticut, I am not a resident of the State of Connecticut, and yet I have all of these positions that they seek to deny my client on the grounds that she is not a citizen.

The difference is that the State of Connecticut does not compel citizenship of Connecticut, the State of Connecticut compels citizenship of the United States.

Justice Byron R. White: What oath does the -- does the practitioner in Connecticut take?

Mr. R. David Broiles: The practitioner as an attorney takes the oath that he will not be guilty of any malice or take anybody's money without just representation or allow any fraud to be perpetuated on the Court.

The significant oath is called the Oath of the Commissioner’s Court or the Superior Court and that oath is I will uphold the Constitution of the United States and of the State of Connecticut so long as I remain a citizen thereof.

That’s the Connecticut statute in Section 125.(Voice Overlap)

Justice Byron R. White: So long as you remain the citizen?

Mr. R. David Broiles: So long as I remain a citizen thereof.

Justice Byron R. White: So you don’t, so the oath means nothing.

(Inaudible) for an alien?

Mr. R. David Broiles: The oaths certainly mean something.

It’s a symbol that one is going to do just precisely what they say.

Justice Byron R. White: It only applies as long as you’re a citizen?

Mr. R. David Broiles: That’s correct Your Honor.

Obviously, I’m no longer a citizen thereof and still have all the positions of an attorney.

That does not make the oath meaningless when I take it.

Chief Justice Warren E. Burger: But Mrs. Griffiths would, on your thesis, not be a citizen at the time she was admitted, if she were admitted --

Mr. R. David Broiles: That’s correct.

Chief Justice Warren E. Burger: -- and so the oath would have just what meaning?

Mr. R. David Broiles: We have suggested that this very statute in question provides for an alternative vote and that she should be required to take the oath that she will uphold the Constitution of the United States and the State of Connecticut.

So long she remains a citizen thereof, obviously, she can’t assert that, that can’t be a meaningful part of the oath for someone who’s not a citizen of either one.

In the alternative, if the State of Connecticut which has not ruled on the possibility of a judge changing the oath, and the power to administer alternative oath is vested in the judiciary.

If they will not change the oath, then under the argument, the oath would have to be unconstitutional.

Because it would just be another way of requiring that all applicants for admission to the Bar be citizens.

Justice Potter Stewart: That -- is the form of oath in here somewhere?

Mr. R. David Broiles: Yes it is your Honor.

The -- I’m sorry, the form of the oath --

Justice Potter Stewart: Yes.

Mr. R. David Broiles: -- is in the supplemental, appears in the appendix to the jurisdictional statement.

Page 44 on my --

Justice Potter Stewart: Page 44.

Mr. R. David Broiles: Page 44, that is the oath of the attorney.

Justice Potter Stewart: Thank you.

Justice Byron R. White: Is there any rule in the Holland that governs the citizens that they should not take oaths of foreign Governments under foreign constitutions?

Mr. R. David Broiles: Yes there is Your Honor.

That is the problem.

If my client takes the oath as required under the Naturalization Act, she will lose her Dutch citizenship.

Justice Byron R. White: So she -- what if she, things like when she swear to support the Constitution in the United States consistent with the laws?

Mr. R. David Broiles: Yes you can Your Honor and as stated throughout that she will take both of the oaths (Voice Overlap)

Justice Byron R. White: What is the restriction in Holland that if you take an oath of -- if you become a citizen of a foreign State, you lose your home?

Mr. R. David Broiles: That’s correct.

That’s the only restriction I meant to imply.

Justice Byron R. White: (Voice Overlap) swear to support the Constitution of the United States.

Mr. R. David Broiles: And the State of Connecticut.

Justice Byron R. White: Now, suppose that United States were at war.

Now, I suppose by swearing to support the Constitution of United States, you might be treating it home?

Mr. R. David Broiles: If you’re asking me to speculate on that, there would seem to be that possibility yes.

Certainly, if this oath were taken after the declaration of war between the two countries that would be a strong presumption.

That it will be taken before --

Justice Byron R. White: So that her oath here, she prefers her Dutch citizenship to American citizenship and that’s pretty clear in this case.

That’s clear in this case, and in the time of war to support the constitution would be somewhat (Inaudible)

Mr. R. David Broiles: I think it she would really have to make an election at that time, yes Your Honor.

We’re not saying the fact of alienage is totally irrelevant as a clue.

That the bar character committee can consider in passing on applications.

We’re saying that an across the board prohibition against aliens does not meet the standard, laid down in Graham of furthering a compelling State interest.

Justice Potter Stewart: What’s alienage have to do with character?

Mr. R. David Broiles: We think that alienage has very little to do character.

Justice Potter Stewart: Well, it has.

It’s irrelevant to a person’s character.

I mean a person could have been a patriotic German in World War II and finest character but we were at war with that country and probably would not have admitted somebody like that to our Bar in between 1941 and 1945, but has nothing to do with that person’s character.

Mr. R. David Broiles: In some you know -- I certainly tend to agree with you.

I think alienage is totally irrelevant to admission to the Bar.

Obviously, four other states (Voice Overlap)

Justice Potter Stewart: It’s irrelevant to character now the question is -- (Voice Overlap).

Mr. R. David Broiles: I use the term character possibly broader than Your Honor does and that it seems to me that under the decisions, there are two general classifications; competence and character.

Now, in Baird, in Law Student’s Research Council, what you classified under the character included inquiries into political beliefs and loyalty.

Now, what we are obviously talking about here, when we talk about citizenship and non-citizenship has something to do with allegiance as Mr. Justice White has averted to numerous times.

That’s what I mean when I say it falls under character.

We’re talking about the types of things dealing with loyalty oaths which is precisely what this Court has dealt with, with regard to admission to the Bar.

Can she contentiously take that oath?

The answer is yes.

It is never been disputed that.

She can contentiously take the oath.

Justice Byron R. White: Except that she knows and you know that in one contingency, the oaths will mean nothing.

Mr. R. David Broiles: She may elect United States citizenship on that contingency.

I don’t know what she will do on that contingency (Voice Overlap) then obviously, she will have her -- this Government were at war with the Netherlands.

Justice Byron R. White: You never know until it's too late?

Mr. R. David Broiles: Do you know in advance what she might elect with regard to contingencies concerning wars in the United States.

I don’t think any of us can predict those contingencies forever in the future.

I think that’s a contingency not all together unique to an alien or (Voice Overlap).

Justice William H. Rehnquist: But what Connecticut is saying it has a right to do as to eliminate people with the peculiar sort of contingency that your client might be?

Mr. R. David Broiles: That is correct.

That what is the State of Connecticut is saying.

Justice Thurgood Marshall: And it applies to everyone who happens to be a resident alien?

Mr. R. David Broiles: It applies to all resident aliens.

Justice Thurgood Marshall: It can also applies to the resident alien who has decided that next year, I am going to take that citizenship?

Mr. R. David Broiles: It applies to all -- yes Your Honor.

It applies to one who has filed a declaration of intent to be a citizen.

Justice Harry A. Blackmun: Mr. Broiles, if the Graham case were not on the books, would you be here?

Mr. R. David Broiles: Yes I would.

In fact, this case was brought before any knowledge of the Graham case.

It was filed in 1970 before Graham was decided by the three-judge court and Graham was decided by this Court after it was appealed to the Connecticut Supreme Court.

It follows from the Truax decision.

Justice Harry A. Blackmun: So that in your opinion, you don’t have to rely on Graham?

Mr. R. David Broiles: I don’t see any inconsistency between Truax and Graham and I think those are the main cases that interpret the Fourteenth Amendment this way.

And I think the answer to your question is yes, you do not have to rely exclusively on Graham.

Thank you.

Justice Potter Stewart: Truax was not a -- wasn’t an equal protection case?

Chief Justice Warren E. Burger: Mr. Tiernan.

Argument of George Tiernan

Mr. George Tiernan: Mr. Chief Justice and the members of this Court.

The issue really revolves about this point, that the applicant here is seeking admission to take the bar examination in Connecticut, hopefully with the final expectation of admission to the bar.

Chief Justice Warren E. Burger: Would you raise a little bit Mr. Tiernan?

Mr. George Tiernan: Yes.

That she’s seeking admission to the Bar of the State of Connecticut on her own terms to some degree at least.

When she was examined before the committee, one of the committees which of course acts as an agency for the judicial department of the State, the Court to the State in the procedure for bar admission which of course appears in the appendix, she was inquired of as to her residence and so forth beginning at page 30.

This is the transcript of the hearing before the committee on recommendations.

Now, when the question arrived as to her citizenship, she unequivocally stated that she was not and that she had no plans of becoming one.

The inquiry and the interrogations stopped at that point by the committee.

The first question posed here by the bench satisfies me that that is a natural inquiry and to my view, the first inquiry.

Why didn’t someone ask why?

Now, of course, the first and basic requirement of the Connecticut rules, which has been an effect for about a century, is first, that he is a citizen of the United States.

Just prior to that, there is a statement to entitle an applicant to admission to the Bar except in Section 12.

One might very well say, well what’s that exception is about.

The exception 12 merely refers to the admission on motion from other States by attorneys in the State of this country.

Justice Byron R. White: Could you tell me what requirement for citizenship of Connecticut (Inaudible)?

Mr. George Tiernan: What do you mean by that?

Justice Byron R. White: Like how do you become a citizen to the State of Connecticut?

Mr. George Tiernan: No, the citizen of the United States, of course, in order to become a citizen, when you become a citizen in the United States of course, you become a citizen of a State that you are presently where you are.

There is no specific answer.

Every citizen of the United States is also a citizen of the State in all to allegiance to both, United States v. Lanza, 260 U.S 377.

The case decided here in 1922.

Justice Potter Stewart: But so far as Connecticut requires, there’s no requirement that he’d be a citizen of Connecticut is there?

Mr. George Tiernan: No.

Justice Potter Stewart: It’s simply a requirement (Voice Overlap).

Mr. George Tiernan: The only requirement is that he is a citizen of the United States and then the second question which was --

Justice Potter Stewart: Has to do with residence that is not before us here?

Mr. George Tiernan: That is right (Voice Overlap)

Mr. Justice Stewart that is correct.

That he is a resident of this State, or intends to become such resident.

Now, of course, that question was really not followed at all or inquiry following the unqualified statement by this applicant before a said committee that she had no intention of becoming a citizen.

That was (Voice Overlap)

Justice Thurgood Marshall: In the Connecticut law, a man says “I intend to become a citizen,” Is he allowed to be admitted to the Bar?

Mr. George Tiernan: Well of course the rule doesn’t limit it just to -- it says there, were entitled and that applicant to the admission to the Bar and of course only one of the steps is the citizenship.

Now, the question of whether a person says I filed a declaration.

Justice Thurgood Marshall: No, my question is, he says, “I intend” the language of the rules is “I intend to become a citizen,” could he be admitted?

Mr. George Tiernan: That has not been decided, but I presume that he would not until he evidenced by some direct manifestations such as filing a declaration.

Justice Thurgood Marshall: Well, he files his declaration, would he be admitted?

Mr. George Tiernan: That I could not answer under the specific rule but I have (Voice Overlap).

Justice Thurgood Marshall: Doesn’t the rule say that?

Mr. George Tiernan: As to residence of course, yes that’s right.

One comprehends the other.

Justice Thurgood Marshall: Right.

Mr. George Tiernan: And I have no doubt.

Justice Thurgood Marshall: And then he becomes admitted and he withdraws his application.

Is he still a member of the Bar or not?

Mr. George Tiernan: He is admitted to what, to the bar or to the examination?

Justice Thurgood Marshall: To the bar.

Mr. George Tiernan: Well, he couldn’t be admitted to the Bar --

Justice Thurgood Marshall: Until when?

Mr. George Tiernan: Until he is qualified as a citizen of the United States.

Justice Thurgood Marshall: He has to then become a citizen before he could come to the Bar.

Mr. George Tiernan: Yes sir.

Justice Thurgood Marshall: But he can take the exam on intent?

Mr. George Tiernan: On a declaration of (Voice Overlap).

Justice Thurgood Marshall: I don’t think it affects this case at all.

Mr. George Tiernan: No.

Justice Thurgood Marshall: How do you look at through acts against race?

Mr. George Tiernan: That’s a very -- that’s the vital question.

That’s the vital question.

May I just introduce.

Justice Thurgood Marshall: Sure.

Mr. George Tiernan: Thank you very much.

The one thing occurs to me is the fact of this Court does not have any machinery for admission to the Bar.

Presumably, that through the history of this Court is because they --

Chief Justice Warren E. Burger: Mr. Tiernan, you must stay near the microphone if you want to be on the record.

Mr. George Tiernan: I have been accustomed to being heard on the past.

Chief Justice Warren E. Burger: Well, we record these, as you see.

Mr. George Tiernan: Oh, I beg your pardon.

This Court derives its qualifications to right degree of practicing before this Court by State’s attendance presumably because they believe through the past that they are proficient enough to be accepted.

And of course the federal system has no separate or distinct machinery for admitting people to practice before us.

Now, one of the basic rules of admission in this Court is that the applicant for a practice before this Court as today must represent that they practiced in a State of this country for a period of three years.

It would be difficult to understand how a person could make a solid showing for a permission to practice here on that requirement.

Because of course, up until this year, there was no single State that unequivocally by decision decided or found that citizenship was not required for admission to the Bar.

Now, in reference to Graham --

Justice Harry A. Blackmun: In that connection, Mr. Tiernan, you have admission by a motion in Connecticut as I understood from your prior remark?

Mr. George Tiernan: That is correct.

Justice Harry A. Blackmun: And suppose, well there are States today which permit a person to be admitted to the bar without proof of citizenship.

Mr. George Tiernan: Yes.

Yes, there are couple.

Justice Harry A. Blackmun: And if someone presented himself to the Connecticut bar authorities with proof of admission in one of those States, would Connecticut admit him by motion?

Mr. George Tiernan: No because under the Section 13 at the rules, subparagraph 3, one of the kinds in addition to his practice in the other State is that he is a citizen of the United States.

That is common to both non-resident Bar, those applying to motion and those applying directly.

Justice Harry A. Blackmun: And yet here, he could be admitted if he had three years behind him?

Mr. George Tiernan: Three years?

Justice Harry A. Blackmun: Three years of practice.(Voice Overlap)

Mr. George Tiernan: Of course, I take it that this issue is not similar to the issues raise or the factual situation raised in Graham and Dunn versus Blumstein voting rights.

Social benefits in Graham -- because of course in those cases, we have a situation where with reference to Graham which advanced that compelling interest, State interest test to be applied in alienage classifications.

Right there, it seems to me that that case distinguished in the situation there because of course the financial integrity of a State was involved just as in Shapiro, nothing about anything else.

That was a case where they were trying to deprive the people of visiting the State of welfare benefits undergrounds of no durational residence for citizenship.

And they said that the State had to show a compelling State interest.

That is hardly to be I think compared with admission to the Bar because of course the reference that was made to the brief concerning the special judicial scrutiny required.

As a matter of fact, the mere situation in Graham and the voting case in Graham and Shapiro, the right to travel which although doesn’t appear specifically in the Constitution has been inserted therein by judicial decision, and the fundamental right of travel of people in this country was restricted, says this Court in those cases.

But in the Graham case, there was a discussion concerning one of the tests used in our history of special interest and in that very case, Graham on page 374, 403, this Court stated that although the special interest test was rejected, so far as the social benefits were concerned, social benefit cases which of course Graham represented, this Court specifically said, whatever maybe the contemporary vitality of the special public interest doctrine and other context at the Takahashi, we conclude so forth.

In other words, they left open, this very Court left open even the application of a special interest test.

Now, Mr. Justice Marshall, you referred to the -- talked about Truax which of course is the case that obviously when this country grants entrance and vote to an alien, obviously, one follows the other.

The early efforts of course, when this question was raised from -- in this country from a country that once had many aliens, when we’re in the formative stages, when that question was raised here in the -- as in to the Truax case, the Court said it was limited to the right of an alien to indulge in the common occupations of men or sometimes it was a common I believe industrial occupations.

That has always been interpreted even by writers, scholarly writers, law writers, that that did not include professions.

Now, incidentally in this connection, efforts have been made to add.

Justice Thurgood Marshall: Could you give me that scholarly writer?

Mr. George Tiernan: The Columbia Law Review, 57 Columbia Law Review 10 (12) at page 10 (26) in 1957, the title of which is “The Constitutionality of the Restrictions on Aliens’ Rights to Work.”

Justice Thurgood Marshall: My question was the name of the scholarly writer?

Mr. George Tiernan: I didn’t have the name.

Justice Thurgood Marshall: I couldn’t find it either.

Mr. George Tiernan: That is correct and that is why I didn’t give you any name.

Justice Thurgood Marshall: But it is said that (Voice Overlap)

Mr. George Tiernan: No, it isn’t.

It’s a comment, I think.

Justice Byron R. White: Student comment.

Mr. George Tiernan: I don't know --

Justice Thurgood Marshall: It’s a student comment, that’s all it is.

Mr. George Tiernan: Well, there were others.

That was just --

Justice Thurgood Marshall: It was a scholarly student’s comment.

But what could point to me in Truax, that says as limited that in any fashion at all and I think you’ll agree that Chief Justice Hughes didn’t use broad language that they can manage.

He said it was a denial of equal protection for a State to draw the line between alien and the citizen in the matter of employment and right to make a living.

Mr. George Tiernan: Yes.

But of course, how can this be considered as all inclusive and have any meaning to the Fourteenth Amendment.

How can this be considered as being all inclusive for all forms of occupational activity including the professions when it's indicated classifications are permissible that must be justified.

After all even Bar admission rules must be within the framework of the Constitution, but how can we ever permit any classifications as such so far as employment is concerned, if that is so?

Now, --

Justice Thurgood Marshall: Well, do you agree that the State of Connecticut could not say that redhead people couldn’t be admitted?

Mr. George Tiernan: I hope not.

Justice Thurgood Marshall: Of course.

What is the reason that the aliens -- this is all aliens, this is the -- is it competence or is it character or what is it?

Mr. George Tiernan: I don’t know.

Justice Thurgood Marshall: What is it?

Mr. George Tiernan: Why as the matter of fact, Mr. Justice Marshall, I believe history reports that when Connecticut was saying no to aliens, they were saying yes to women.

Now, I don’t know whether that would be called and that was sometime ago.

Justice Thurgood Marshall: Well, I’m only asking about aliens, why are they excluded?

Why?

Mr. George Tiernan: Because in the State of Connecticut, the Court has established by this Court, presented, I should say, by its decision that because of the status and the position of the lawyer in the State, there are other conditions or qualifications that are required, citizenship, residency, educational requirements, they say, this Court stated that in order to have a system toward the administration of justice and in the public interest in Connecticut, a lawyer who is called with the right to command actions by authority of the State of Connecticut, in connection with his affairs both private, both public, and his reference to individuals as a counselor.

Justice Thurgood Marshall: Do you mean that an alien is more dangerous in his private life than a citizen?

Mr. George Tiernan: No.

Justice Thurgood Marshall: Do you -- do you say that an alien is less competent than a citizen?

Mr. George Tiernan: No, I didn’t say that.

Justice Thurgood Marshall: Do you say are alien has less character than a citizen?

Mr. George Tiernan: What you’re trying to say is that alienage is an irrational classification per se.

This Court has not said so but you have to have the opportunity to say it right now.

Justice Thurgood Marshall: But I am waiting for you give us a reason why we shouldn’t say it and I’m still waiting for that reason.

Mr. George Tiernan: I’m backing up to the Court.

In this case in which I represent.

In Connecticut, the Court stated that because of the position that member of the Bar holds that citizenship is a requirement, that there is nothing irrational above the State asking for that in accordance with the precepts set down by the decisions of this Court.

And in the first place, as one said in -- just examine the duties of a lawyer, his relationship both to the individual, the public, his connection with the Court, his involvement of the rules, his involvement of the procedure, and the changing procedure and changing rules, all of this is connected with the Government.

Justice Thurgood Marshall: Am I correct that this applicant has three law degrees?

Mr. George Tiernan: And there are three degrees.

I think one is, well two.

No question she has a degree from --

Justice Thurgood Marshall: Well, didn’t she qualify to understand the rules?

Mr. George Tiernan: Oh!

She --

Justice Thurgood Marshall: Well, you said that the lawyer has to understand the rules, well, she’s qualified?

You don’t question that, do you?

Mr. George Tiernan: I didn’t say she -- it’s obvious, she understood the rules because she so admitted in the transcript.

She was asked if she was aware of the rules.

She said yes and she signed the affidavit of the application.

She indicates --

Justice Thurgood Marshall: I’m still trying to get the reason.

You haven’t at least tried to satisfy me of any reason at all except the fact that she is an alien?

Mr. George Tiernan: Well, in the first place if Your Honor please, the Court stated really three things.

The Court stated that first a lawyer in Connecticut has generally stated is an officer of the Court.

Secondly, that in Connecticut in addition to that, the attorney is a commissioner of the Superior Court.

And in that connection, the commissioner of the Superior Court in Connecticut has the right to sign civil suits and command executive officers to serve those documents in the State and --

Justice Thurgood Marshall: Well, this man said he resides in and he is now a resident of Fort Worth, Texas can go up there and serve one right now, am I correct?

Mr. George Tiernan: Yes he can sir but he can you can sign that issue.

Any member of the Bar as the commissioner’s brief automatically becomes the Superior Court.(Voice Overlap)

Justice Thurgood Marshall: Where he comes up and serve one and go back to Fort Worth and that doesn’t offend Connecticut at all.

Mr. George Tiernan: I --

Justice Thurgood Marshall: As a matter of fact he could move to Honolulu and come back and do it.

Forever more he could move to the Netherlands.

Am I correct that he could move to the Netherlands and come back, and do commissioner work?

Mr. George Tiernan: Well, of course, as long as he retains -- as long as he retains his position in Connecticut.

Justice Thurgood Marshall: Alright.

Mr. George Tiernan: Whether they are known by the authorities or not and in whatever connection, he is of course clothed with the rights of the office that he has.

Justice Thurgood Marshall: Would he lose that if you took out double citizenship?

Mr. George Tiernan: Well, of course that would be obviously a question --

Justice Thurgood Marshall: Would he, under those rules?

Mr. George Tiernan: Well there’s no rule here that says that if you can be a citizen of two countries and still be a lawyer and of course --

Justice Thurgood Marshall: Well, is there anything?

Well if a person gives up his citizenship, does he resign from Bar automatically?

Mr. George Tiernan: If he gives up his citizenship?

Justice Thurgood Marshall: If he gives his citizenship, his United States citizenship five years from now, does he lose his Bar membership in Connecticut?

Mr. George Tiernan: Oh!

No there’s no such provision.

Justice Thurgood Marshall: So, that this man can -- who is sitting in there --Mr. Broiles, could go to Netherlands, live in the Netherlands, take out the Netherlands citizenship and he’ll still be able to practice law in Connecticut.

Am I right or wrong?

Mr. George Tiernan: Well, by what test or standard do you mean?

Justice Thurgood Marshall: Under the -- under the law in Connecticut right now?

Mr. George Tiernan: Well, there is no a specific provision that covers any particular case, Your Honor.

Justice Thurgood Marshall: Well, there’s nothing in the law that says once he loses his citizenship, he loses his right to practice law?

Mr. George Tiernan: Well, I assume that that could be considered without any specific reference thereto.

Just the -- then you get into the international question or the federal question of citizen -- may I just call attention to this Court, to the fact that in this particular case, there was question raised at the committee hearings as to whether or not there was any treaty existing between the Netherlands and the United States.

And the applicant said that there was no treaty concerning reciprocal rights of either national to practice in the state or country of the other.

But actually at that very time, there was a treaty between – and is a treaty between the Netherlands and the United States which in declaring the national treatment of the nationals of either country, specifically excluded by by the protocol of that treaty, the professions.

Justice Harry A. Blackmun: In those treaties?

Mr. George Tiernan: It was after 1956.

Justice Harry A. Blackmun: While I have interrupted you Mr. Tiernan, let me ask you one other question which really isn’t here on case but it still bothers me?

Mr. George Tiernan: Yes.

Justice Harry A. Blackmun: Am I correct in my understanding that Connecticut in addition to requiring citizenship for attorneys and physicians also requires it for funeral directors, and embalmers, and hairdressers, and barbers, and sanitarian?

Mr. George Tiernan: Yes, that’s what’s listed in the original Court decision of the Supreme Court as a reference of the appendix.

Justice Harry A. Blackmun: Is it a fact that this State does this?

Mr. George Tiernan: There is to the statute so -- still there.

Did you include barber sir?

Justice Harry A. Blackmun: I did.

Mr. George Tiernan: That is becoming moot in Connecticut, but that is a fact that those statutes are still there.

Justice Byron R. White: Because there are no barbers?[Laughter]

Mr. George Tiernan: You see I come from New Haven, Justice White and the demand is, bless me.[Laughter]

The -- now, with reference to the (Inaudible) the question of dual citizenship of course raises a problem.

This has been reiterated in the Courts of this -- in this Court -- in the decisions of this Court and it’s impossible in the case of lawyers to imagine that a person with dual nationality, dual citizenship, dual allegiance, would be able to fulfill the task that that person has in reference to the practice of law.

Justice Thurgood Marshall: How is dual citizenship involved here?

Mr. George Tiernan: Well, it isn’t because of course this applicant wants it this way, being a citizen of the Netherlands --

Justice Thurgood Marshall: But I don’t -- she doesn’t claim dual citizenship in any?

Mr. George Tiernan: No.

Justice Thurgood Marshall: Well, how is it in this case?

Mr. George Tiernan: Well, she’s getting around that.

She’s going to have both options.

She’s going to be a citizen of the Netherlands, a country of origin and the right to practice law in Connecticut and if that’s isn't having it both ways, I can imagine what is.

The fact is that also referred to here in this situation is the case of Schware, the case to which -- it’s about the only case that set down to test of what is necessary for the admission standards reasonableness was required and its felt that here that the rule in Connecticut is reasonable and rational with reference to the admission of any candidate for the Bar of Connecticut.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Featured:

Sugarman v. Dougall - Oral Argument

Thu, 23 Aug 2012 18:19:52 +0000

Case:

Sugarman v. Dougall

Media File:

71-1222_19730108-argument.mp3

Related Transcript:

71-1222_19730108-argument

Transcript:

Argument of Samuel A. Hirshowitz

Chief Justice Warren E. Burger: We’ll hear arguments next in 71-1222, Sugarman against Mc Dougall.

Mr. Hirshowitz, you may proceed.

Mr. Samuel A. Hirshowitz: Mr. Chief Justice, may it please the Court.

This case involves the question of validity of a Section of the New York State Civil Service Law the -- which the -- a three-judge District Court held invalid.

The particular language that the Court dealt with is found on page 91 of the record in a footnote, “Except as herein otherwise provided, no person shall be eligible for appointment for any position in the competitive class unless he is a citizen of the United States.”

There is a second subdivision which doesn’t appear in the record but which is discussed in the opinion which provides that where the appointing authority cannot find any person to fill a position, he may apply to the Local Civil Service Commission or to the State Civil Service Commission and if they are satisfied that there is no one available for that position they may certify this appointment which last only for the -- to the end of the year and cannot be continued unless this appointee has taken steps to become a citizen by filing a declaration of intention.

The particular appellees here were appointed by the City of New York as provisional appointees.

That means they never took any examination.

As provisionals they were entitled to hold their position at the discretion of the appointing authority for a period of which is generally regarded as nine months provided that there was no eligible list, and in this case the answer of the City of New York shows that there was an eligible list established but in this case, the appellees would terminate it not because of the existence of the eligible list but because of the existence of this statute the City of New York found that they were not citizens.

The Civil Service System in New York as this Court knows is based on the merit system and the competitive class which is established after examination and qualifications.

One who is appointed after examination obtains rights of tenure, seniority and promotional preferences together with pension benefits.

The appellees have been residents according to their affidavits have been residents in the City of New York for varying years.

Some six years, some ten years and none of them have taken even the first step to obtain citizenship.

The first appellee, Mc Dougall for instance was a resident to the City of New York since 1964 and never took any steps to become a citizen.

None of the appellees, because of a question of preemption which will be discussed, none of the appellees were ever certified by United States Secretary of Labor for the position he or she was filling.

As a matter of fact, Mc Dougall was the only one that took an examination.

And let me point out that prior to 1968, the statute which I read provided that nobody could take an examination for our position but that was altered and amended to provide that no one could be appointed.

The difference being that one who is an alien could take the examination and the meantime take steps to become a citizen as the usual process that takes from six months to a year before the examinations are marked and a list established, and the list one established is usually good for varying period of three to five years.

The District Court in this case sustained the appellee’s challenge on both Equal Protection and Supremacy Clause grounds relying principally on a case decided by this Court, Graham against Richardson which we are sure was misapplied.

The Graham case has spawned a flock of litigation in various federal courts throughout the land.

According to our computation, there are seven cases in various federal courts and various stages of litigation raising questions as to the validity of discrimination against aliens.

Let me also point out that the Federal Government has a quibbling practice which is as a result of authority given to this Civil Service Commission to establish the conditions of employment and by Executive Order aliens have been barred from United States employment except the same way as New York does.

Certification where there's no available employee.

The -- in addition to that, Congress in the annual appropriation bills has specifically provided that no payment of compensation can be made to an employee if he is not a citizen of the United States.

That is an employee on American soil.

A copy of the federal provision, we have attached to our brief as exhibit 1.

And in this Court here, the appellees have persisted in the claim at the right to travel of the aliens as being interfered with as if they ever posses such right which is important in part in this case and they have apparently, as we read their briefs, argued that the statute is overbroad which was not a contention what was made below.

In the sense that the lower grade of employees should not be barred by this statutory provision but the higher grade employees may be barred.

The first question that suggests itself is whether there is any equation of equal protection available to the appellees whether the court was right in considering equal protection at all.

We suggest that his very precedent and principle required this Court to hold that the States have not been by divested of the power to limits its public employees as citizens.

And that this power is not affected by Equal Protection Clause of the Constitution.

This does not involved the consideration of the question of rights or privileges which is being blurred by the decisions of this Court by the question of any entitlement at all to consideration for employment, public employment.

The question was on the consideration in the Crane against United States and in that case this Court held valid New York state statute which provided at that time that employment on perfect contracts could be limited to citizens.

And the question that to state the Court in the discussion was a question not whether public employment could be limited to citizens but as to whether the public contractors were in effect the Government when engage in public contracts.

The District Court relied to some extent on the Truax case which was decided by the same Court at the same time and in the same volume of the reports.

In the Truax case, the Court struck down an Arizona statute that forbids the employment of aliens generally.

At the same time, it was very careful to point out in its opinion that it did not -- that that case did not involved the appointment of citizens in public employment.

In the Crane on the question of equal protection the Court concluded what the words -- there is added a view that a distinction between aliens and citizens violates the principles of classifications.

We think this is also without foundation.

And in the Truax case, Chief Justice Hughes said, that the challenge here is not limited to persons who are engaged in public work but that have passed from the employment in the entire field of the industry in all common occupations.

The Crane case came from the New York Court of Appeals and Judge Cardozo who later said on this Court, distinguished the Truax situation and the Crane situation in this way.

It must be evident that nothing in this opinion gives confidence to the view that the Government may deny to aliens the right to engaged in any private trade or calling on times of equality with citizens.

It is true that in dealings between man and man, the alien and the citizen trade labor on equal terms.

It is the denial of equal protection of laws when the Government in its capacity as lawmaker regulating not its own property but private business bars the alien from the right to trade and labor.

It is therefore our contention that the Crane case in its present under the facts in this case is authoritative, this position by this Court for the view that the Equal Protection Clause does not apply.

Justice Thurgood Marshall: Do you mean that Equal Protection Clause did not apply to state employees?

Mr. Samuel A. Hirshowitz: It does not apply to aliens seeking to obtain public employment.

Justice Thurgood Marshall: But you don’t take the position of the State is at from under the Fourteenth Amendment when it hires its own employees?

Mr. Samuel A. Hirshowitz: The Equal Protection Clause of course is applicable to the State.

But in the -- on the question of whether aliens entitled to public employment, it’s our first position that the Equal Protection Clause does not apply because of the Tenth Amendment Constitution.

When the Constitution was adopted from historic times, the States were obtained and continued with the right to run their own Government except in so far as expressly interfered with by the United States Constitution and there's nothing in United States Constitution and it would appear to me to do a violence to the Government of the States or either by judicial decree or congressional act to interfere with the Government to the States and to provide that aliens must be employed by the States.

Now, this is not a novel in Oregon against Mitchell, Chief Justice Black in discussing the 18-year-old vote case.

It said in part, “it cannot be successfully argued that the Fourteenth Amendment was intended to strip the States of their power, carefully preserved in the original Constitution, to govern themselves.

The Fourteenth Amendment was surely not intended to make every discrimination between groups of people a constitutional denial of equal protection.”

And in the Maryland against Wirtz, justice -- Mr. Justice Douglas said in connection with the Bill which -- a law which as this Court will remember dealt with minimum wages of certain classes of state employees.

Mr. Justice Douglas said in his dissent that it would snuff out state’s sovereignty.

“If all this can be done, then the National Government could devour the essentials of state sovereignty, though, that sovereignty is attested by the Tenth Amendment.”

And then he went on to quote Mr. Justice Stone in the case New York against United States where Chief Justice Stone said, “The National Government may not interfere unduly with the State’s performance of its sovereign, sovereign functions of Government.

It may not impair this State’s function of Government.”

Now, below the three-judge-court in its opinion disregard the fact that the -- this country and its various subdivisions is not only a Government of the people, it’s a Government by the people.

And by the people means, the citizens of this land and this includes -- this excludes the right to compel aliens to be employed by the state or its subdivisions.

Justice William H. Rehnquist: Mr. Hirshowitz, are you going to come to the case of Graham against Richardson which I guess the three-judge District Court below relied on?

Mr. Samuel A. Hirshowitz: Graham against the Richardson did not involve any practice in New York.

New York as some paper show has paid welfare to aliens from the beginning of the welfare system.

As we read the Graham case, this Court was dealing with indigents and that case there the State involved was just trying to establish a crude economic preference.

Citizen was being provided when the necessities of life while the alien was not.

Although, the alien’s status bears absolutely no relationship to the alien’s needs as a recipient or to his contributions as a taxpayer.

In contrast to welfare, Section 53, the statute on the discussion has concerned solely with maintaining the national character and the integrity and efficiency of the career civil service.

Now, even if this Court holds that equal protection was properly made an issue below, its opposition that the right of the State to run its government by its own citizens by itself find issues, sufficient basis whatever tests of equal protection is applicable.

All nations and states conduct their affairs through the agency of public employees and thus, practically every nation and state requires its agents including the career civil service be citizens.

As this Court recognize in such cases as Afroyim against Rusk, citizens not aliens are members of state.

Justice Harry A. Blackmun: Mr. Hirshowitz, what do you -- how do you define the term that you’ve employed career civil service?

Mr. Samuel A. Hirshowitz: There are three grades of employment under New York States Civil Service and I think it is generally the rule.

You have the competitive class where appointments are made after examination, and then there is the exempt class or exempt category where appointments had been – may be made by the appointing law officer without regard to examinations, and then there's the noncompetitive class, where as a position of unusual character which -- from which examination cannot provide the suitable employee.

Justice Harry A. Blackmun: But on New York City, is his trash collected by the City?

Mr. Samuel A. Hirshowitz: It is for residents, yes.

Justice Harry A. Blackmun: And the -- is the statute one that would require than the municipally employed trash collector to be a citizen of the United States?

Mr. Samuel A. Hirshowitz: Every employee of the city must be a citizen unless as I said coming within the exceptions of certification and incidentally they’ve only been in the City of the New York, they’ve been only 27 certifications of waiver of this citizenship requirement.

But it does make any difference, I think in the Mitchell case there.

This Court said it was difficult, almost impossible to draw a distinction between various grades of employees.

The clerk that’s in the village office and takes your tax receipt, as far as the public is concerned, he or she is Government and were entitled to insist that such employees be citizen of United States.

In addition to which a career employee who starts at the bottom level under the merit system in New York is entitled to promotion and the same person who starts at the bottom level as a garage collection -- a garbage collector would be entitled to take the examination and be appointed to the senior position up to the top there's no way of stopping that.

It’s been suggested by our opposition as I said towards the beginning, that maybe the bottom garbage collector as far as he is concerned, the law is bad with that promotion opportunities should be precluded for aliens, for that would be in violation of the whole civil service system.

Justice Harry A. Blackmun: Do you read Judge Lumbard’s concurrence as in effect a characterization of the Court’s opinion generally.

When he says, nothing in our decision should be construed to mean that a state may not lawfully maintain a citizenship requirement for those positions or citizenship bear some rational relationship to the specific demands of the particular position.

Do you feel the other judges concur in that statement?

Mr. Samuel A. Hirshowitz: I don’t know -- I don’t think they did the -- Lumbard -- Judge Lumbard was troubled by the decision.

As I’ve indicated there, he was troubled by the fact that there are many positions in the higher level in the civil service system that he himself conceded should be kept only for citizens.

In his final rationalized that but that would mean if you follow Judge Lumbard, you would have to need the individual case justify the preclusion of alien.

I want to say I'm worried about the preemption.

The second ground upon which the District Court relied for its decision was a question of preemption and that was discussed in the Graham case also.

But let me point out that none of the appellees were ever certified by the United States Secretary of Labor for these particular positions, so that the claim that a certification by United States Secretary of Labor somehow interfered with the validity of the statute has no basis in fact.

The Secretary of Labor certifies all immigrants only upon entrance pursuant to the statute.

These certifications do not purport to cover public employment at all and I've read the minutes of the congressional hearings both for reference to the 1952 law and the revision of 1965, and nowhere is there any indication that Congress intended by the law to cover public employment.

We think that the statute is entitled to the presumption of constitutionality that was accorded to the congressional act in the Oregon against Mitchell case.

And we submit that the civil service employee who’s an alien would present special problems to the State and to the Federal Government.

In Rogers against Bellei which was recently decided by this Court, this Court referred to the problems that arise from dual nationalities there.

And judge -- and referred to a case by Mr. Justice Douglas in which he said, “One who has a dual nationality would be subject to claims from both nations, claims which at times may be competing or conflicting that circumstances may compel one who has the dual nationality to Truax which would not be compatible with the obligations of American citizenship.”

Justice Thurgood Marshall: That would apply to the trash collector?

Mr. Samuel A. Hirshowitz: It does, Your Honor.

It applies to --

Justice Thurgood Marshall: He have dual citizenship problem?

Mr. Samuel A. Hirshowitz: Not so long ago in Lerner against Casey.

This Court held that --

Justice Thurgood Marshall: What problem would he have?

What problem would the trash collector have?

Mr. Samuel A. Hirshowitz: The trash collector could create as much problems as the conductor in Lerner against Casey where this Court held that a subway conductor was obligated to fill out a loyalty of the -- where do you stop when --

Justice Thurgood Marshall: That Truax against Raich, that’s where you stop.

Mr. Samuel A. Hirshowitz: Now, Truax against Raich merely held as I have pointed out that applies to persons in common occupations and as I indicated --

Justice Thurgood Marshall: Do you say that State of New York could not pass a law, prohibiting the employment of aliens by anybody?

They couldn’t pass that law?

Mr. Samuel A. Hirshowitz: No, sir.

Justice Thurgood Marshall: But they could pass a law that said, “we will not employ aliens in our state government.”

Mr. Samuel A. Hirshowitz: Yes, Your Honor.

Justice Thurgood Marshall: And you don’t see any problem?

Mr. Samuel A. Hirshowitz: No, problem at all because it is the -- that is the way this country once said this country could not be run by aliens and addition to what's the -- and Mr. Justice Marshall --

Justice Thurgood Marshall: Do you think this country could exist if every trash collector in New York was alien?

I think this country could exist?

Mr. Samuel A. Hirshowitz: Any person --

Justice Thurgood Marshall: That’s just my personal view.

Mr. Samuel A. Hirshowitz: Yes.

In any case, you can pick at random situations.

But the fact is that all employees should be citizens and it doesn’t present any part to them from employment.

Now, these people here who had been in the New York City at least six to ten years made no effort to become citizens here.

It’s no problem to them whether its trash collectors or whether in this case Mc Dougall was a senior, had a senior job officer -- in the poverty program.

Let me also study Mr. Justice Marshall that the State of New York in the City of New York is now engaged in trying to reevaluate the merit system in order to provide a better means of testing the entrance of a million in a half Puerto Ricans, about two million black citizens in the competitive class system.

Justice Thurgood Marshall: Thank you for eventually getting round to it.

Chief Justice Warren E. Burger: Thank you Mr. Hirshowitz.

Mr. Evens.

Argument of Lester Evens

Mr. Lester Evens: Mr. Chief Justice and may it please the Court.

I really frankly don’t know where to begin.

I was extremely troubled by the briefs submitted by the appellants and frankly very troubled by the argument today.

There are references that are made apparently made by the appellees that state that we would not object if certain jobs are eliminated and others were included.

I don’t recall ever making any such statement and if I had I certainly would take this opportunity to clarify the point that we certainly consider this the most ranked form of classification in violation of Equal Protection Clause.

And that it would -- will apply across the board regardless of the positions involved.

When I attempted to read the brief of the appellants and frankly I had a great deal of difficulty.

Justice Potter Stewart: Do I understand by your opening statement that you therefore disagree with the --

Mr. Lester Evens: The remarks on --

Justice Potter Stewart: -- the concurring opinion in this case?

Mr. Lester Evens: Yes, I do.

I do it quite clearly.

I think that without any characterization about Judge Lumbard’s decision.

I do think that his opening paragraph essentially recited or restated the law as it should be and was in concurrence incurrence with the opinion that was written and then seemed to have diluted or vitiated the impact of the original decision without any basic justification.

If I may point out as Mr. Hirshowitz has indicated.

New York State Civil Service statute is broken down to two major categories, the classified and the unclassified.

Included in the unclassified are elective officers from the Governor to the legislators.

It also includes a number of other very essential important positions such as heads of departments and appointments made directly by the Governor, either with or without the consent of the State Senate.

Any discussions about positions of policy or having an essential impact upon the running of the Government of the State certainly would seem to fall primarily within this class.

And yet, this very class makes no reference to citizenship whatsoever.

Justice Potter Stewart: That is elective?

Elective --

Mr. Lester Evens: Well, what I'm saying how -- it includes elective plus heads of departments and appointments by the Governor directly, executive appointments and it includes appointments by the legislature for various jobs.

Justice Potter Stewart: So far as the law of New York goes to the Governor New York could be as a --

Mr. Lester Evens: Must be a citizen.

Justice Potter Stewart: He could be a citizen of Japan, could he?

Mr. Lester Evens: No.

He’s required to be a citizen under the Constitution.

I'm referring specifically to the Constitution of the State of New York requires all those in the elective office to be citizens of the United States.

Justice Potter Stewart: Everybody in elective office?

Mr. Lester Evens: In elective office.

Justice Potter Stewart: At every level?

Mr. Lester Evens: At every level.

Justice Potter Stewart: To be a citizen of what? Of the United States?

Mr. Lester Evens: Of the United States.

Justice Potter Stewart: And of the State of New York.

Mr. Lester Evens: And of the State of New York, residency of the State of New York in varying degrees depending upon the position involved.

For the Governor the requirement is the longest.

Justice Potter Stewart: But none can be a resident alien?

Mr. Lester Evens: None can be a resident alien under the Constitution of the State of New York, however, under the unclassified designation within the civil service statute.

There are number of other positions enunciated in that statute other than elective office.

They enunciate heads of various departments.

They enunciate appointments by the Governor directly either with or without the consent of the Senate to positions that the Governor would appoint to in running the Executive Branch of the Government.

They refer to certain positions appointed by the legislature itself.

Now, it would seem to me that if issues of policy and loyalty and of that nature would be involved, it would clearly be the people who would have these very responsible positions both with the Executive Branch of the State and the Legislative Branch and particularly heads of departments.

Justice Byron R. White: Well, may --

Mr. Lester Evens: I'm sorry.

Justice Byron R. White: May the State excludes the aliens from running for office in New York?

Mr. Lester Evens: It would seem to me quite clearly under the Constitution of the State of New York that you are required to be a citizen to run for office.

Justice Byron R. White: Well, I know about that.

I know that’s what the State Constitution and how about the validity of that provision under Equal Protection Clause?

Mr. Lester Evens: My personal attitude is that I have difficulty with that.

That I think that the --

Justice Byron R. White: How about the aliens voting?

Mr. Lester Evens: I think that aliens certainly should have the right to vote.

Certainly --

Justice Byron R. White: So, the aliens don’t have the right to vote?

Mr. Lester Evens: They don’t have the right to vote in New York State.

Justice Byron R. White: And assume those provisions that are for voting and for running for office are valid under the Equal Protection Clause, would that make your case any tougher?

Mr. Lester Evens: No.

I really do not think so because I think that again, to refer back to the brief of the appellants in this proceeding.

I think there was a confusion concerning the elements necessary under the Equal Protection Clause.

It is my understanding that it is -- they're essentially two basic sections to the Equal Protection Clause the traditional one for which there can be an application of a rational relationship.

The other being any classification which might be based on race which would be an invidious classification would require very strict judicial review.

Justice William H. Rehnquist: [Voice Overlap] even the language of the Fourteenth Amendment, Mr. Evens?

Mr. Lester Evens: No, I find it in the cases and I refer specifically in most recent case in Graham versus Richardson.

And I would like to point out that I believe that the equal protection argument was raised in Lindsay versus Normet.

And in that case, I believe Mr. Justice White had stated that a reasonable application of a summary kind of proceeding in which the parties were limited in terms of the counter-defenses they could raise was very rational and reasonable because the statute was intended to overcome consequences which were much dire.

Yet, nevertheless there was an issue of due of process that could have been involved in that proceeding and sustained the statute in Oregon.

Justice Byron R. White: Let’s assume that that the requirement that of course to be a citizen to vote is valid under the protection to vote.

Mr. Lester Evens: Yes.

Justice Byron R. White: And the justification is that you do not want the political up rightist to be in control of aliens.

Now, and the Board of -- or no one aliens to participate in governmental decision making.

Now, is it such a long step to say that they also shouldn’t be able to work for the State?

To participate in the administering of the state business?

Mr. Lester Evens: The initial position --

Justice Byron R. White: He might even run and say that a fortiori they shouldn’t be entitled to?

Mr. Lester Evens: Except if I may just point out, we are here challenging Section 53 of the New York State Civil Service Statute.

Section 53 is the merit section of the competitive section of the Civil Service Statute.

As I try to point out earlier, there are various sections within the Civil Service Statute which involve in fact very important policy positions in which there are no restrictions concerning citizenship.

And in fact the Governor could appoint aids and people who would assist them in making very important policy decisions of the state and it would have to be no regard.

They need not to be in any regard as to the issues --

Chief Justice Warren E. Burger: That’s a matter of a choice by the State, is it not?

Mr. Lester Evens: Pardon?

Chief Justice Warren E. Burger: It’s a matter of choice by the State?

Mr. Lester Evens: Or by the Executive who has the certainly that prerogative to act --

Chief Justice Warren E. Burger: Which are not -- we’re talking about the compulsion of the Fourteenth Amendment?

Mr. Lester Evens: However, Mr. Chief Justice, I believe that that’s relevant to exactly the issue that’s involved here.

The State is endeavoring by a statute to legislate the elimination of an entire class from public employment.

With an apparatus where if there was a foundation or a basis for determining that certain individuals where not competent to hold jobs, perhaps an alien coming to this country holding in a publicly elected office.

They certainly, the Civil Service Commission is more than competent to deal with this.

This would not require the kind of legislative situation in an elective office.

Chief Justice Warren E. Burger: What about the federal statute which has been reproduced at page 40 of the -- of your friend’s brief?

What do you have to say about the constitutionality of that statute?

Mr. Lester Evens: Is that the statute that was recently amended in 1970 or 1971?

Chief Justice Warren E. Burger: Its 1972 which would appear --

Mr. Lester Evens: 1972.

I believe that that’s the statute that may have been involved ultimately in the matter of Jalil versus Hampton in which this Court denied a writ of certiorari.

I think that it would equally apply in this -- to this statute as it would in the State.

Chief Justice Warren E. Burger: Do you think this -- the federal statute is unconstitutional?

Mr. Lester Evens: Yes, Your Honor I do.

Justice Harry A. Blackmun: Mr. Evens, let me follow through with one thing more, I take it from your answer to Justice White that you were troubled by the provisions of a New York Constitution requiring that elective office holders be citizens?

Troubled in the light of Fourteenth Amendment?

Mr. Lester Evens: Yes, Your Honor.

I'm troubled in terms of the broad scope of the exclusion.

To analogously recite the requirements of the Immigration Naturalization Law which sets forth very particular detail regarding political affiliations and character and so forth, I think that that is does not disturbed me as being violative of the Equal Protection Clause.

But I do think that that with regard to just generally and broadly saying that in the entire class of people should not be permitted to hold office in and out of itself, at any particular context thus disturb me.

Justice Harry A. Blackmun: Well, now in the Federal Constitution we have citizenship requirements --

Mr. Lester Evens: Yes.

Justice Harry A. Blackmun: For the President and members of the Congress.

Mr. Lester Evens: Congress, yes.

Justice Harry A. Blackmun: Both Senate and House.

Mr. Lester Evens: Yes.

Justice Harry A. Blackmun: Are you equally troubled by those provisions in the light of the more the later enacted Fourteenth Amendment?

Mr. Lester Evens: Well, in that situation I would have to respond and I don’t mean to be evasive that I don’t see the mechanism or the device to do anything concerning that other than the method of repeal.

I do think that this Court could review the Constitution of the State New York.

I think that perhaps – well, essentially what I'm trying to say Mr. Justice Blackmun is that the traditional classical roles of citizenship are seem to be changing and perhaps changing for the better.

And I do think that conceivably if such a matter could be approved by the citizenry of the United States, it might want to change.

I don’t see the apparatus beyond repeal that could in anyway change the United States.

Chief Justice Warren E. Burger: Well, what's wrong with relying on the Fourteenth Amendment to repeal the provision of the President of United States must be a native born American citizen?

Mr. Lester Evens: Well, I have -- I must start --

Chief Justice Warren E. Burger: Before you start -- when you start down that road, suppose a citizen of Venezuela who came up here and like the country but wanted to keep his citizenship in Venezuela filed for the President of United States, and the issue might arise when he was trying to run in an State primary let us say.

Now then on your theory, the Fourteenth Amendment could be read as having repealed?

Mr. Lester Evens: If I may.

It is my position that I am endeavoring to take in this is that there are other qualifications can be imposed that a mere broad classification involving alienage raises very, very serious questions.

I think that the brief of the appellants in and off itself their arguments seem to substantiate that this is essentially a discriminatory device.

I would like to -- in response to what you are saying.

I’d like to point out, Mr. Dougall’s name was mentioned that he had come here in 1964 and never made any effort to become a citizen of United States.

Mr. Dougall came here from British Guiana.

He came as an ex-patriot as essentially a political refugee.

As long as the Government and British Guiana never changes, Mr. Dougall has no intentions whatsoever of returning to British Guiana.

However, Mr. Dougall has made it very clear that if there is a change in Government that would make it possible for him to return, he would at that time return.

Nevertheless, he has been and continues to be a viable resident of the State of New York, has always endeavored to work, has paid taxes, has done all of the other things and in fact has a family and children.

And quite incidentally, his children have been born in the United States because he has been married since he was here.

Chief Justice Warren E. Burger: In other words, he wants to keep his options open?

Mr. Lester Evens: No.

No, Your Honor.

He has never said he wanted to keep his options open.

He has clearly said I always want to return to British Guiana but I cannot return to the Government that there's now because it’s that very Government that has been so hostile to me that I have been forced to leave.

I should point out that two of the other named plaintiffs in this proceeding are refugees from Cuba.

They are incidentally very young and they came here at a very young age with their families.

It is impossible for them to return to the very same Government that exists in Cuba that they runaway from.

Now, incidentally one of them has applied for American citizenship.

All three of the named women plaintiffs are all around the age of 21 or slightly older and one of them has definitely, one of the Cuban citizens has applied for citizenship, the other has not.

But however, it is impossible for them to return at this time whether or not they would return if the Government would change, I don’t know.

I do know in the case of Mr. Dougall that he definitely would return.

It isn’t a question that these people are endeavoring to take advantage of both sides of the argument or to have their cake and eat it.

It’s a question really they have very few options but certainly they should have the right and the prerogative to decide where they wish to be a citizen.

Chief Justice Warren E. Burger: On your theory, you’ve just told us I thought that they should be entitled to vote?

Mr. Lester Evens: Yes.

Chief Justice Warren E. Burger: And that they are entitled to run for public office?

Mr. Lester Evens: Yes.

Chief Justice Warren E. Burger: Isn’t that keeping options open?

Mr. Lester Evens: It may keep options open but I certainly doesn’t -- don’t -- do not think that it is necessary their intention to keep these options open.

The brief seems to state that they are going to try and get the best of all possible worlds that aliens have some great advantage over citizens in the United States.

Yet, the Court have repeatedly said the language in the Caroline case in which the Court has repeatedly said that they are disadvantaged group and require special consideration of the judiciary in reviewing classifications that are made against them.

Chief Justice Warren E. Burger: What about an alien who came here and then returned to his native land.

Would you say he was entitled to vote by on your view by an absentee ballot?

Mr. Lester Evens: No.

I would again say that this person --

Chief Justice Warren E. Burger: [Voice Overlap] doesn’t make him a non-resident alien on your theory?

Mr. Lester Evens: I -- there is a distinction between a resident and non-resident alien.

Chief Justice Warren E. Burger: On your theory?

Mr. Lester Evens: Yes.

Chief Justice Warren E. Burger: I thought there is in law but what's your theory of the difference?

Mr. Lester Evens: Our theory has been that the resident aliens involved the name plaintiffs and the class they represent in this proceeding at people who are participating as viable members of the State of New York had live their legally and lawfully, had designated New York as their residence.

And that they should have the right and the entitlement to participate in all of the activities of that state including right to have -- do not have doors of employment close to them.

Now, if Mr. Dougall --

Justice Thurgood Marshall: Is there anything that you can think of any right that a citizen could possibly have that you wouldn’t urge that an alien would also have?

Mr. Lester Evens: It would be very difficult for me to answer that question.

I can see --

Justice Thurgood Marshall: Pray tell what is the benefit of American citizenship?

Mr. Lester Evens: Well, the benefit of the American citizenship for one essentially sets forth a political benefit.

If I may say --

Justice Thurgood Marshall: Well, I thought you said they should have right --

Mr. Lester Evens: Well --

Justice Thurgood Marshall: -- empathy?

Mr. Lester Evens: What I'm saying is it that, this is a country that has granted refuge to political refugees and the -- well, let me withdraw that.

I would respond in the sense by answering question.

Does citizenship require any special benefit?

And I have trouble with that.

I don’t think that citizenship necessarily --

Justice Thurgood Marshall: I probably note (Inaudible) to better end then we didn’t need the Fourteenth Amendment?

Mr. Lester Evens: If people were not discriminated against and if the Equal Protection Rights were not violated.

Justice Thurgood Marshall: What did Amendment give citizenship to people?

So, you didn’t need that?

You didn’t need to grant a citizenship in this country?

Mr. Lester Evens: It was my understanding, yes.

But in my understanding the Fourteenth Amendment says that we will --

Justice Thurgood Marshall: The trouble is how far you go away from the issue that’s in this case?

Mr. Lester Evens: Well, I do not intend to go away from the issue of this case.

It’s my intention to spell out that on questions of employment the State cannot justify in anyway any position nor have they, that in any way could not be preformed by a lawful resident alien of the state as but then by anyone else.

Now, if I am asked questions such as, should aliens be allowed to be on petit or grand juries which they are not allowed to be in the State of New York, or should they be allowed to vote, or should they be allowed to hold public office.

These are highly hypothetical questions which are very difficult for me to answer because it means that I must take a position which really quite remove from the case before us.

These situations do exist.

There are obviously differences where it is applicable.

I think however that the cases have clearly indicated and it was clearly pointed out in Shapiro v. Thompson and in Graham v. Richardson that when there is a classification that discriminates against aliens.

Its tantamount to discriminating against a class because of race and if we were to make rules that black people from the south coming to the new -- to New York could or couldn’t do things simply because they were black and from the south.

That would be objectionable and I believe totally unconstitutional if there are any such statutes enacted.

Chief Justice Warren E. Burger: But it would make any difference what their race was, if they were coming from the south to the north, if they were people here?

Mr. Lester Evens: Well, if they came from -- if they came from adjoining states of Connecticut or New Jersey or Pennsylvania, if they were black and the statute said that blacks could not be a civil service employees because they are unstable and because they are disloyal or they have loyalty to the State that they came from.

This would be unquestionably --

Chief Justice Warren E. Burger: Of course, that’s doesn’t have anything to do with this case, does it?

Mr. Lester Evens: It does in the sense that the classifications’ concerning aliens is tantamount to a classification concerning race.

Chief Justice Warren E. Burger: Where did this Court ever say that?

Mr. Lester Evens: It is my understanding that’s exactly what the Court said in Graham v. Richardson --

Chief Justice Warren E. Burger: For purposes?

Mr. Lester Evens: For purposes of the degree of judicial scrutiny on the Equal Protection Clause.

Chief Justice Warren E. Burger: Yes.

It said these are suspect classes --

Mr. Lester Evens: Yes.

Chief Justice Warren E. Burger: -- which means nothing more or less has as I think Chief Justice Warren said that we scrutinized the line drawing and the basis of the classification very carefully.

Mr. Lester Evens: Yes.

Chief Justice Warren E. Burger: But --

Mr. Lester Evens: More strictly than would be if it were a matter not a grace.

Justice William H. Rehnquist: One factual distinction Mr. Evens is that your clients presumably have it within their own power to change their status, don’t they?

To become citizens if they so choose?

Mr. Lester Evens: Yes, they certainly do.

All of my clients and now over the age of 21 and could qualify to become citizens.

There are questions of whether or not they choose to take that option.

And as I pointed out, some of them really are here as political refugees and really fully intend to return.

It should be pointed out too incidentally but these people were employed by the City of New York and were fired.

These people were not seeking positions and when they were employed by the City of New York, they were informed that they would maintain the status that they always had before.

They work for a non-profit corporation which happens to be funded by the Office of Economic Opportunity and the Office of Economic Opportunity cutoff the funding for the particular positions that they were working in.

And the City of New York said, “We will incorporate this now into one of the departments within the City of New York and you will be permitted to continue to work and you will be permitted to continue to maintain the same position that you have at the very same salary.”

And very shortly thereafter, they were informed by letter that the only reason they were being fired was because of there citizenship not because of any questions of competence or character or anything else.

Now, it was pointed out by my adversary during argument that the prevailing law today concerning public employment is Crane and Hines, and cited Mr. Justice Blackmun’s decision in Graham v. Richardson as sustaining this position.

It was my understanding in reading that decision that what the Court said is we are not dealing with the issue of employment and public employment at this time.

We are dealing with an issue of welfare benefits.

As Judge Tenney in the District Court in writing the opinion in this case below stated, “The time has arrived.

The Dougall case has now presented that time with the issue of employment has now come up concerning aliens and that at this very appropriate to review that.”

And in light of the decision on Graham v. Richardson, this is a classification that ever requires the strict judicial scrutiny and the appellants in this proceeding have not sustained or met that requirement.

Chief Justice Warren E. Burger: Would you think Mr. Evens the -- what would you think of the statute of the State of New York that will have a limitation to the employment of people in these categories who had signified their intention to become citizens by having filed the first application?

Do you think that would equally violate the Fourteenth Amendment?

Mr. Lester Evens: If that requirement were in there?

Chief Justice Warren E. Burger: Yes.

Mr. Lester Evens: I incidentally there is a statute that does.

I believe the second half of Section 53 that we have before has some such reference to it at filing a declaration of intention to become a citizen.

I personally, I have trouble with it if the reason the State of New York has set forth this classification.

It was for unconstitutional reason and I believe it was for a non-constitutional reason.

It was discriminating against the class.

And I would like to point out that in the brief of the appellants in this proceeding, they indicate that aliens are unstable, there is no evidence of their instability.

They indicate that even if an alien took an oath as might be required of civil service employees, we wouldn’t necessarily believe them anyway.

Chief Justice Warren E. Burger: We aren’t -- we haven’t found that the reasons that are argued.

Mr. Lester Evens: No, I understand that.

Chief Justice Warren E. Burger: The Court of Appeals, the three-judge court didn’t rest on any significance --

Mr. Lester Evens: No, it didn’t but the reason that I point this out is it that even using a close judicial examination of what the legisla -- what was the purpose of the legislation really does not permit the statute to survive the requirements of the Equal Protection Clause and that the examples for the arguments made by the appellants are themselves invidious.

The implication --

Justice William H. Rehnquist: Mr. Evens, one of the fact situations you described is that of Mr. Dougall who plans if the Government changes in Guiana to return.

Now, isn’t there at least something that might commend itself to a reasonable legislature in the argument, that here is a man who we can provide a good job for in the civil service who we could expect to be there rather indefinitely if we kept promoting him if he were a national but this man is subject to a -- you know in his eyes very legitimate outside poll but the citizen just wouldn’t be subject to?

Mr. Lester Evens: However, I'm not so sure that if citizen might not subject to it.

I think that today --

Justice William H. Rehnquist: Well, assuming that no citizens are going back to Guiana?

Mr. Lester Evens: No, but a citizen might go back to New Jersey or to Washington District Court.

There is certain no requirement to be a resident of the State of New York.

Justice William H. Rehnquist: No, but most people haven’t left New Jersey or Connecticut to come to New York as political refugees?

Mr. Lester Evens: No.

No, but they certainly have come to New York to get employment.

It’s probably the focal point of the employment for the northeast area or perhaps even for the country, and that in fact we live in a society where our population is very mobile.

And to make any kind of arguments to say that aliens are more unstable than the rest of population without any foundation or basis for it is auspicious argument.

If a young person graduates from school as it’s so typical and comes to Washington DC or comes to the City of New York to seek employment and perhaps to develop something in a career and never fully to intending to stay permanently, should that person be denied the right to civil service employment?

Presuming that is a person born and living outside the State of New York who is a citizen of the United States and the statute does not discriminate against that person nor do I think it should.

And I cannot see any distinctions between non-residents of the State New York, in terms of the arguments of the appellants make and aliens who are lawful residents.

The very people that we are talking about is the name plaintiffs in this proceeding admittedly have been living here for a substantial period of time, doing all of those things, all them have worked.

They haven’t been themselves indigent or force to seek other forms of sustaining themselves.

They have been working people.

Chief Justice Warren E. Burger: But I recall that you do make a distinction between resident and non-resident aliens?

Mr. Lester Evens: Yes.

Yes, and as a matter of fact Judge Tenney I believe does as well when he wrote the opinion of the court below.

Chief Justice Warren E. Burger: Do you accept that?

Mr. Lester Evens: Yes.

Because I do believe that we have many, many categories of aliens.

Chief Justice Warren E. Burger: In other words if --

Mr. Lester Evens: People come here on short term visas as tourists and I certainly don’t think that they would be certainly be entitled to the kinds of prerogatives that a citizen or a resident alien would be entitled to.

The requirements empowers by the Immigration and Naturalization Act, a much more stringent than they are for someone who comes here to take advantage of our the marvelous, its natural resources, visiting the parks, etcetera and lives in a short time.

Justice Byron R. White: But the State or National Government excludes aliens, excludes your clients to military service?

Disqualify them from serving in the army?

Mr. Lester Evens: Under the present law or could they enact the law saying aliens --

Justice Byron R. White: To say that they are just disqualified from working from the Government and the Military Service?

Mr. Lester Evens: Well, it sounds very similar to a Civil Service Statute.

If -- you know my approach to military service have always been in fact that aliens have been required to serve.

Justice Byron R. White: I agree with you.

Mr. Lester Evens: And now using it from the other point of view, I would have to presume that to be a form of Government employment or public employment, and therefore I think that it would equally objectionable.

Justice Byron R. White: And just like across the board as far as Government employment is concerned?

Mr. Lester Evens: Provided, provided as long as the statutes of the State of New York say that the person closest to the Governor.

The closest adviser to the Governor need not be a citizen, then certainly nobody else should have to be required to be a citizen and the statute in effect says that.

Justice Byron R. White: So your position is limited to the peculiarities of the New York Law.

If the New York Law didn’t have those exceptions in it, would you still be here?

Mr. Lester Evens: Yes.

Justice Byron R. White: Yes.

Mr. Lester Evens: I would.

Justice Byron R. White: So, it really doesn’t make much difference about the Government?

Mr. Lester Evens: No, I am just trying to point out the anomalies in the argument of the appellants.

Chief Justice Warren E. Burger: Well, does that --

Mr. Lester Evens: How can they argue -- how can they argue the necessity for making policy decisions by someone who on the one hand to use the analogy the Court has used today of a garbage collector or the analogy on the other hand a biologist to who happens to be working with fungus on let’s say tobacco leaves or whatever.

Justice Thurgood Marshall: Can you imagine a Governor of a State in this country today appointing somebody to high government office who wasn’t a voter?

Mr. Lester Evens: Who is not a citizen?

Justice Thurgood Marshall: No, he was not a voter --

Mr. Lester Evens: Can you appoint him to high government office, if he was not a voter?

Justice Thurgood Marshall: Yes, sir.

Mr. Lester Evens: Do you mean an office such as to fill a vacancy on the bench or to fill a --

Justice Thurgood Marshall: Any.

Mr. Lester Evens: He could not to fill a vacancy on the bench or could not to fill a vacancy in the legislature.

Justice Thurgood Marshall: But you said there were some high positions that the Government would appoint an alien to?

Mr. Lester Evens: Yes.

Justice Thurgood Marshall: And I'm asking you, you name me the position that any Governor would appoint a non-voter too.

Mr. Lester Evens: I know no Governor who would do that for a many other reasons.

I saying the statutes allow him too, that is all I'm saying.

Thank you very much.

Chief Justice Warren E. Burger: But with this -- with your constitutional objections to this statute disappear then if the statute said that this could be waived under certain circumstances?

Mr. Lester Evens: The -- my objection is to the classification and it would exists regardless to what modifications there might be by legislation.

I think that this is an attempt and an endeavor to take a large segment of the population of the State of New York and to say to those people you cannot work in certain jobs.

Chief Justice Warren E. Burger: Well, all New Yorkers said about this Governor’s aides that hypothetical people you're talking about?

Mr. Lester Evens: Yes.

Chief Justice Warren E. Burger: Are that Governor may appoint some of them if he wants to?

Mr. Lester Evens: Yes.

Chief Justice Warren E. Burger: Now, what if in the civil service they said that the head of the agency may appoint some aliens who rank in the first three of the civil service if they want to?

Wouldn’t that be the same situation?

Mr. Lester Evens: I have some difficulty with that because I think that once we get into qualifications and making divisions then we are no longer performing a judicial function.

We apparently are performing an administrative or executive function or legislative function which can very well be handled by a very, very sophisticated and substantial body the Commissioner and his department of civil service and that certainly he could set forth reasonable criteria of any kind.

If I may point out Mr. Chief Justice, this statute was originally amended to exclude non-citizens in 1939.

The statute had been on the books for many years before that without any reference to it.

However, the Commissioner on his own had been discriminating against aliens and in fact it was recommended that this particular law be pass the amendments requiring citizen to be in a competitive civil service class because the Commissioner have been doing something all along which the legislature had not mandated.

Now, this was one of the letters that we had found in the Bill Jacket.

Now, it seems to me that if we have before us today the 1939 Law before it was amended and the Commissioner himself was discriminating broadly against an entire class.

We would be making the very same argument whether it was enacted or not.

Thank you very much.

Chief Justice Warren E. Burger: Very well.

Thank you.

Thank you Mr. Hirshowitz.

The case is submitted.

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