Warren E. Burger: We will hear arguments next in Hynes against the Mayor and Council of the Borough of Oradell. Mr. Taylor.
Telford Taylor: Mr. Chief Justice and members of the Court. This is an appeal from a decision of the Supreme Court of New Jersey which upheld against federal constitutional challenge, a municipal ordinance, which requires that any person who wishes to call from house to house in support of a political campaign or cause must, first, identify himself with the municipal police in writing. Probable jurisdiction was noted in the past term of Court. Now, Your Honors, there are one or two twists in the litigation history of the case which are irrelevant to the posture in which the case now comes before the Court and which I believe and hope, are adequately explained in the statement and in our brief to which, I believe, my brother at the bar here has taken no exception. So, I am going to content myself with a very brief summary which I hope the Court will find sufficient. The defendant appellee here, the Borough of Oradell, has, at least since 1971, had what has come to be known as a Green River Ordinance, affecting house to house calling by commercial solicitors, salesman and solicitors for commercial purposes that, being the local state of the law in Oradell. In March 1973, the Appellant Hynes who was then a member of New Jersey Assembly and a candidate for re-nomination and reelection, and to whose constituency the Borough of Oradell had just been added by a statewide reapportionment, in March 1973, Hynes went to Oradell and commenced a campaign from house to house. The police had accosted him and made him stop canvassing and asked him to leave the Borough although, of course, ordinance then in effect did not cover this situation at all. A very few weeks after that, the Borough of Oradell enacted the ordinance extending its coverage to solicitors for charitable contributions and any person campaigning for a political -- canvassing for a political campaign or cause. Pardon?
Speaker: (Inaudible) Democrat or republic?
Telford Taylor: Mr. Haynes is a democrat, Your Honor.
Speaker: And Oradell is not?
Telford Taylor: To the best of my knowledge, it is not. Yes, I suppose so, since --
Speaker: (Voice Overlap) my knowledge, I think --
Telford Taylor: Right, the ordinance having been enacted, the appellant Hynes and four other plaintiffs, likewise appellants here who were residents of Oradell, Hynes himself was not though Oradell was part of the constituency, four residents brought a suit for declaratory and an injunctive relief focusing their complaint under the First and Fourteenth Amendments. They prevailed in the lower Courts on a combination of state and federal grounds, but between the time in the lower Courts and the time when the case reached the Supreme Court of New Jersey, a further amendment to the ordinance eliminated the state questions and so the New Jersey Supreme Court reviewed the case squarely on the basis of the federal constitution and upheld the ordinance by a vote of 5 to 2. Parenthetically, I should note that on the same day, the day they decided this case, they rendered their decision in the Collingswood case which involved a wholly different kind of solicitation ordinance from another borough and there is some cross reference between the opinions in the two cases. Therefore, we have included the opinion in the Collingswood case in our appendix. That case is pending here on appeal and I believe the Court has taken no action on it. Now, the ordinance in the form in which the Supreme Court of New Jersey reviewed it is in our brief on pages 3 and 4 to which I invite the Court’s attention for just a moment. I think the Court will see on page 3 where the “whereas” clauses explain the purpose of the ordinance that are set out; that the explicit and exclusive purpose of the statute is public safety against crime, the theory being that people on a pretext of soliciting votes will then engage in breaking and entering or larceny. On the operative clause of the ordinance on page 4, the Court will see that it covers any person who is canvassing for charitable cause or for any federal state county or municipal political campaign or cause, that such a person must notify the police department in writing for identification and that one notification is sufficient for the duration of the campaign or cause. The penalty clause --
Speaker: (Inaudible)
Telford Taylor: Pardon me?
Speaker: (Inaudible) but in the second or the first “whereas” surely, they do not practice polygamy knowingly in Oradell whereas the Borough is primarily one family residential town whose citizens are employed elsewhere resulting in the wives of the wage earner to be left alone during the day.
Telford Taylor: I would have to observe there is a slight sexist phraseology in the ordinance, Your Honor, yes. The attitude apparently is that only men work and the women are home. On that point, I will have a little more to say later, but I think it does not affect the apparent purpose of the ordinance as directed in terms of public safety against crime. There is a penalty in the underlying Green River Ordinance applicable here which a fine of $500 or 90 days in jail, cumulative day by day. The New Jersey Court, the majority, up --
Potter Stewart: Mr. Taylor, this ordinance, 598A, is --
Telford Taylor: An amendment.
Potter Stewart: It was further amendment, it is subsection of ordinance 573 or is an exception to the basic Green River Ordinance?
Telford Taylor: Yes, it is phrased as an exception which is a little curious because it was excepting things that were not in there before.
Potter Stewart: That is what I thought.
Telford Taylor: It was at one and the same time an extension to other people, but with a different requirement --
Potter Stewart: Different Section, it is not an absolute prohibition?
Telford Taylor: Well, the same Section, but different requirements to validate the soliciting.
Potter Stewart: The other ordinance, the basic Ordinance 573, requires what?
Telford Taylor: That covers commercial solicitation and it specifies in considerable detail what the notice filed with the police shall be and of course then there has to be a license for that which is not the case here.
Warren E. Burger: Are there any of these ordinances, Mr. Taylor, present as a person required to receive a card that is used as identification somewhere?
Telford Taylor: Well, I think that is true if you are commercially soliciting, but it is not true with respect to the cognizance of question here now.
William H. Rehnquist: Does the commercial solicitor have to pay for his license?
Telford Taylor: I would have to check it in the appendix, Mr. Justice Rehnquist.
William H. Rehnquist: Well, they do not --
Telford Taylor: Right, the ordinance of course is set forth there. Now, we of course recognize that public safety is legitimate and indeed a very vital public interest and we are not contending here that calling house to house is totally immune from legislative restriction. I am not standing here and supporting any such absolute, but our position is that the Supreme Court of New Jersey did very badly misjudge the constitutional practical factors that are at work here in these contending values and that we think a proper judgment on them would require a contrary conclusion.
William H. Rehnquist: Mr. Taylor.
Telford Taylor: Yes?
William H. Rehnquist: This kind of door to door soliciting is not immune from some regulation. Can you conceive of a less onerous regulation than the one that the Borough has imposed?
Telford Taylor: Yes, indeed. That question, of course, was put to counsel by the New Jersey Court and the Court seems to have taken the position that there was no less, I think. We have touched on that in the brief. A limitation on the time of day at which you could call from house to house might well be legitimate, legislation in support of householders who gave notice they did not want people using their front side walk and ringing the bell. For this purpose, it would be sufficient. I think, beyond that, one would have to say it would depend upon the kind of abuse that was troubling the City Council on which we --
William H. Rehnquist: The kind you have mentioned puts the burden both on a householder and the town to enforce it in a way that this does, if the individual has got to go and make the compliant themselves?
Telford Taylor: Well, maybe I did not put it clearly. The restriction on time of day would put no burden on the householder. Well the second, I suppose, would mean that the householder would have to give some indication that he did not want solicitors coming to the door. Of course, it seems to me that would be -- whether going beyond that is permissible or not must depend upon assessing how deep is the infringement on First Amendment here and how great is the municipal interest that requires a restriction and that is what I propose to address myself to now. With respect to the depth of the infringement here, both in terms of the scope and the depth, I would like to make some observations. The case here has proceeded continually on the basis that the main effect of this is the restriction on a candidate that a candidate must register. The affidavit of the Chief of Police of Oradell attached to the answer here is exclusively concerned with the obligation of the candidate, but of course, the restriction here is not limited to candidates. It applies to any person and that means all canvassers, anyone who is going to get signatures on behalf of a candidate is affected by this. The Court below saw this as a way of protecting the community against strangers infiltrating into the community, but the ordinance is not so limited. It covers residents of the community as well as people coming in from the outside. The talk has all been about campaigns, but it is not restricted to campaigns. It covers political causes. Now, the combination of all these would mean, I submit, that if a householder in Oradell wishes to canvas his own block, wishes to call from house to house in his own block, in support of or in opposition to the Equal Rights Amendment, to school busing, to charter reform, that he must first register with the police -- he or she must first register with the police.
Warren E. Burger: Serving program to put new curbs or sidewalks and --
Telford Taylor: I should think so. Things have a way of becoming political issues that perhaps should not, but all those sorts of things are political in the sense that the political authorities will pass on them, and therefore, it would be, it seems to us, a very chilling effect, on that sort of community, political consultation.
Warren E. Burger: Would you agree, Mr. Taylor, that the police authorities have some reason to believe that a great many breaking and entering cases, attacks on householder have come by people who gained entry by getting the door open by processes, by representing themselves in some way as a solicitor or a caller?
Telford Taylor: Well, that is an extremely relevant question to the other side of the coin here, that is the extent of the necessity for this kind of restriction and I will address myself to that directly now. The record here is, I think, wholly insufficient to establish any such thing. The only evidence touching on this point is contained in Chief Broniolli’s affidavit in support of the answer in which it is the last thing in the appendix. If Your Honors wish to look at it, it is on page G4 of the appendix, and the part of it that speaks to your question, contains some statistics on the number of breakings and enterings within the Borough in 1969,’70,’71, ’72, and so forth, but there is absolutely nothing in his affidavit or anywhere else in the record which indicates that a single one of those breakings and entering had anything to do with door to door solicitation. There is a total lack of --
Speaker: Mr. Taylor, what page is it?
Telford Taylor: I beg your pardon, it is very --
Speaker: G4.
Telford Taylor: -- it is the tail end of the appendix.
Speaker: Okay.
Telford Taylor: G4.
Speaker: G4.
Telford Taylor: G4 and G4-5, yes. The statistics on breaking and entering in Oradell, we have compared in our brief with the statistics nationwide. The rate is very considerably lower than the nationwide rate. On the last page of our brief, we have compared Oradell with the New Jersey crime statistics and other boroughs of comparable size. There is no indication that there are, in any sense, any particular conditions in Oradell. There are several boroughs with much higher rates, several at slightly lower rates. It seems to be wholly characteristic. So, there is neither any showing of a pervasive nationwide need, no showing of local peculiarity, and absolutely no showing that a single one of the breakings and enterings was the result of somebody posing as a canvasser, and as Your Honor says, getting a foot in the door. There is nothing there.
Warren E. Burger: Would it be irrational for the decision makers to conclude that since this does happen in some places, they are entitled to take preventive measures to see that it does not happen in Oradell or do you think that would not be an appropriate consideration?
Telford Taylor: Well, I think it is an appropriate consideration, but it seems to me that, here, where one would expect if that was so, Your Honor, that some other places where this had broken out would have felt a need for this kind of ordinance. We have done our best to find if there are any other places which have felt this necessity and although it is virtually impossible to canvass all the municipal legislation of the United States, we have done our best and have not come across any indication that any other place had done this. Then, of course, there is a particular history here that this ordinance came on the heels of a particular episode. I have a couple more things to say later about the rationality of the ordinance in terms of its purpose, but I think not and I think that, again that this, since we are in the First Amendment area here, that this speculation that it might have happened somewhere else is quite insufficient to justify the depth of the infringement on the First Amendment here. The lower Court -- I beg your pardon, I do not mean the lower Court, The New Jersey -- pardon me?
Lewis F. Powell, Jr.: I gather the argument that you gave us before we put some questions to you is basically an over breath target, is it not?
Telford Taylor: Well, it is more than that. We have a vagueness argument which I have not touched on yet. Yes, it is --
Lewis F. Powell, Jr.: It may be more, but it also --
Telford Taylor: Yes, there is none of that, that is true. I have not come to the respects in which this seems to me so deep an infringement, the New Jersey Court seems to have thought that just registering with the police is really no trouble to anybody and why should anybody be excited about it, but if one thinks about this in terms of the political process that this Court has repeatedly confronted in recent years on requirements that minority parties, parties that have not been major parties before get signatures in order to get on the ballot, other parts of the political process of this Court has upheld. I believe in one of them Justice White emphasized the vital role that dedicated volunteers must play in an effective political process. If one thinks in those terms, the difficulties of recruiting volunteers to get signatures, to urge people to go to the polls and so forth, if they must first go to the police station or mail in their notification is very considerable. The mailing then may not suit -- pardon?
William H. Rehnquist: Mr. Taylor, do you think that people who would be successful in getting people to sign up on a door to door basis are the kind of people that will be loath to register with the police?
Telford Taylor: I think in many instances, that is true, Your Honor, yes and I do not mean to say that such people are very much different from anybody else. If we are a political campaign --
Potter Stewart: They probably are going to be flushing violence, are they?
Telford Taylor: They may well not be people who look happily on a visit to the police station.
Thurgood Marshall: They do not even want to go there, not even to visit?
Telford Taylor: Most people do not go to the police station for pleasant reasons. They go either because their car has been stolen or they have stolen somebody else’s car, and the whole business here you cannot schedule canvassing. As a matter of getting volunteers by hook or by crook --
Byron R. White: There is nothing in the ordinance that requires anybody to go to the police station as I read it, you can make a telephone call, can you not?
Telford Taylor: It has to be in writing.
Byron R. White: Does it?
Telford Taylor: It has to be in writing specifically under the ordinance, yes.
William H. Rehnquist: But you do not have to appear personally under the ordinance?
Telford Taylor: You would have to get your writing there either by mail or by personal delivery. You could send it by somebody else, but if one canvasser has a sick daughter or something and cannot go and you want to send somebody else, there will not be time to do that other than by going down.
William H. Rehnquist: Well, how about sending a whole list?
Telford Taylor: It would not do it fast enough. It is a matter of getting somebody else on the spot notice.
William H. Rehnquist: How about sending just a whole list of people that these are substitutes and they will be doing it too. Is it not one of your problems here the fact that you have never really done this and so you do not know what the mechanics or the details of the thing would be when they are worked out?
Telford Taylor: Well, I think that in this area, there are certain matters or commonalities that the Court can recognize. I do not believe there has ever been a campaign where, at the outset of it, one had a complete list of all people who might be going to canvass. One of the big things about a campaign is persuading people to come and do it and if when you try to persuade them to come, you have got to stay in the same breath, well I am sorry, but before you can do any of this you have got to get word to the police and identify yourself. We are overlooking entirely up to this point, Your Honors, the whole question of ethnics, political view points, the candidate particularly for local offices, maybe a person the police department do not like very much or they do not like what he is standing for, suppose it is for Civilian Review Board who review police brutality. There are all kinds of things. It may make people very reluctant to do this.
William H. Rehnquist: But if you had a record showing that, we could take some account of it, but this is simply an action for declaratory judgment without ever anybody going and doing it?
Telford Taylor: Well, the only record we have of the necessity is that update and I submit it is totally insufficient to warrant a restriction which I think is a matter of common knowledge, one can see will be a considerable chill here, Justice Rehnquist. I do not see how one can doubt that the whole matter of recruiting people to do this very necessary and arduous task would be rendered enormously more difficult by this kind of requirement. There is further factor of anonymity of course, the problem that Talley against California covers. It may generally be that candidates do not act anonymously, but for canvassers and others the situation is quite different. They may be quite willing to identify themselves to the household that they go to see, but not nearly as keen about identifying themselves to the police if their cause is one that is likely to be unpopular to the police. Police have ethnic and class prejudices like other people do.
William H. Rehnquist: But you are asking us to assume that without ever any showing in the record that that is the case here?
Telford Taylor: Well, in the first place, it seems to me a reasonably safe assumption and in the second place, I think you must also examine the record.
Speaker: It is like the police over 50?
Telford Taylor: Pardon?
Speaker: It is like the police over 50.
Telford Taylor: Well, over or under 50, I think they will still reflect the same prejudice as an attitude that, seem to me, troublesome here. Now --
William H. Rehnquist: Would it not be easier for you if it were the town clerk?
Telford Taylor: Some, whether enough is another matter, but in fact, it is the police here not the town clerk.
William H. Rehnquist: But do you think there will be a difference constitutionally or could be if it were the town clerk?
Telford Taylor: Probably, the chilling effect would be somewhat less, but since the purpose here is public safety, the whole purpose of this statute will be frustrated, Justice Rehnquist, if you made it the town clerk. The whole purpose here is to get in the hands of the police right away. So, that is really not our situation. The point on vagueness, which I will just take a minute on if I may; once again the New Jersey Court seems to have thought that the ordinance was crystal clear and it certainly is clear enough in terms of the kinds of speech that it covers, that is, the charitable solicitation, the political counseling, and so forth, but I submit that the notifying in writing for identification only is quite insufficient. What can the police legitimately require for identification purposes? As far as the record shows, they have put out no rules. They have put out no forms. The Police Chief has made a couple of remarks about it in his affidavit, but of course, they do not seem to be in any way binding on him or his successor. If the purpose of the ordinance is to help the police to know where canvassing is going on, it would seem to require some indication of where in the Borough you are going to be or this does not say one way or the other. Are these lists to be kept confidential or made public or this does not help us? It seems to me, they are just too many questions left unanswered here and I refer the Court to Justice Pachman’s dissent below where he stresses, it seems to me very effectively, the special risks of harassment, discriminatory enforcement and so forth, that in here in the vague quality of this restriction. Now in conclusion, may I say, that with the very -- with the total lack of any indication need here with the obvious effect that it is going to have on a political process on neighborhood discussion that the whole balance here was misjudged below and that the case calls for reversal. Thank you, Mr. Chief Justice.
Warren E. Burger: Mr. Major.
James A. Major: -- and members of the Court. Before I commence my argument, Justice Brennan, Mr. Hynes in this case is a democrat. I voted for him. In this particular case --
William J. Brennan, Jr.: Will things change if it is a democratic or a republic intent?
James A. Major: Yes, indeed. We have a democratic legislature and a democratic government.
Warren E. Burger: Mr. Ordell’s town councilman, what is the town’s position?
James A. Major: I beg your pardon?
Speaker: He is in the state legislature.
James A. Major: Hynes, yes, sir.
Speaker: From that district?
James A. Major: An assemblyman, yes sir.
Speaker: From that district?
James A. Major: Yes, sir.
Speaker: Not now, Oradell was added to the district once he was originally elected, was he not and the reapportionment; Oradell, a republican community, was added to the district which had originally elected him?
James A. Major: They have apportioned the districts, Mr. Justice Brennan.
Speaker: And he wanted to go into Oradell to have the people of Oradell know who he was?
James A. Major: When he canvassed me, Justice Brennan, he lived in Maywood and I lived in Hackensack and he --
Speaker: I would have expected you to vote for the democrat, Mr. Major. As I remember you?
James A. Major: Yes sir.
William J. Brennan, Jr.: [Laughter]Very favorably, I would say.
James A. Major: Very well, sir. It has not done me any harm, sir. [Laughter]In this particular case, the problem that we have, and I would like to lay it right on the table so that you understand what we are driving at. We do have a small community. We do not have what you would call policemen on regular troll and what not, and we have people coming into the town. I am going to say, for instance, Justice Jackson pointed this out in one of his dissenting opinions, what happens and it will lead up to what I say is the reason we adapt these ordinances. People will come to town in a colony and they will descend on your town and they will debauch a group of canvassers and through your town they go knocking at doors, “we are soliciting this,” “we are soliciting that,” and so forth and so on. Now, as I point out in my brief and I think as Justices will recognize, the man who has in mind casing a house for future burglary does not announce that fact. He is going on the guise of a solicitor whether for a charitable campaign or whatever it is. Now, ever since this Court laid down the decision in the Valentine case, we have taken the position that commercial free speech, if I can coin the phrase, is subject to regulation and, in some cases, to prohibition. Now, we have adapted and you will find it, if you ask counsel about the initial ordinance, you will find it at E1 which is our original canvassing ordinance and you will notice there that the person who applies for a permit must fill out a form, answer certain questions, and the like, describe the goods that he is soliciting, and so forth. Those ordinances have been upheld in the State of New Jersey and I understand, are not attacked here. Now, we take a step further. We have people come to the town. They say “we are soliciting votes.” “We are running for this,” “we are running for that,” and “we want to go from house to house.” Now, as carefully as I have read the decisions of this Court, and I read them in preparing this particular ordinance, I have found nowhere does it say there is a premise that a person has a right to ring my doorbell. I may forbid him and the Court probably is familiar with buildings where there are signs, “solicitors prohibited,” “soliciting prohibited,” and the like. Now, these people come in and say “we are soliciting” or “running for office,” so forth and so on. The question then is, should we have some idea who they are? And, I think when counsel says “there is nothing in the record to indicate why this was done, I think the Court would really sit up in its respective chairs, if I said that we have 12 unsolved murders in our vicinity, and therefore, there is fear in the minds of the householders. Now, you may say “well, it is an unjustifiable fear.” It is one of the incidents you have to put up with in living in civilized society, but if a legislative body is going to be responsive to the will of its people, it has to recognize these conditions, and therefore, the First Amendment to this ordinance was passed. Now, here is where we had trouble. It came before the Trial Judge on the return of an order to show cause. There was not a plenary hearing. No testimony was taken, and counsel who then appeared for Mr. Hynes and his fellows, took the position that this was an unreasonable regulation and I emphasize that position, an unreasonable regulation of the right of free speech, and it was on that hypothesis that the case was argued. Along came the Trial Judge, and counsel and I are agreed on one thing, it is very hard to follow that opinion. I do not know whether it was correctly transcribed or what, but the upshot of it was that he said that if you are running for office, you do not have to comply with any regulations. You are right to run for office is absolute. Now, I know of no decision by this Court, going back to Justice Black and the other who were absolutists to the effect to the right of free speech was not subject to regulation, which took that position. So, we try I might say, parenthetically, the amended ordinance was defective because it had no sanctions and an ordinance without sanctions is no ordinance. So, we amended it and amended it in the light of the challenge that was made. Compare the amended ordinance with the one which you will find at E1 which requires answer to questions, identification, and so forth. The only requirement that we put in here, and we thought we were compliant not, Justice Brennan, the idea of keeping democrats out of Oradell or anything of the sort, but with the idea of analyzing competing principles. Surely, a man has a right to run for office. Surely, he has a right to solicit signatures on nominating petitions and the like. Also, we ought to have some idea of who you are, and therefore, we only said one thing, identify yourself in writing to the Police Chief. Say you are Mr. Hynes and you are going to be in Oradell soliciting house to house. Say you are so and so and you are going to --
Lewis F. Powell, Jr.: Mr. Major, may I interrupt you at this point? How would you construe the requirement of identification in writing, would a postcard suffice?
James A. Major: I would say that it can be done in writing. I would say anything in a way of a driver’s license or anything that I am what I pretend to be.
Lewis F. Powell, Jr.: Your answer suggests that one would have to go to the police station and prove the correctness of his identity, is that in your thinking?
James A. Major: The ordinance says “in writing.” It does not require a personal appearance at the police station. Now, the only time I think that the suggestion you have in mind or the thought that may be troubling you would come into play is if the person were not recognized by his writing. In other words --
Lewis F. Powell, Jr.: Well, suppose I lived in Trenton and I just sent a postcard into the police saying that one of these days I am going to be soliciting for this charity or that charity or that candidate or some other, what would happen from then on? Would that be adequate to comply with the statute or the ordinance?
James A. Major: I would definitely say, contrary to what is said in the opponent’s brief that there will be no discretion in the Police Chief to say that is not a recognized charity or anything of the sort.
Lewis F. Powell, Jr.: (Inaudible) Trent from saying “my name is Powell, I live in such and such street”?
James A. Major: I had in mind Cantwell against Connecticut.
Lewis F. Powell, Jr.: But you cannot answer my question?
James A. Major: The Secretary of State was in power to determine whether it was a recognized charity and so forth. We have not gone into that.
Lewis F. Powell, Jr.: What I am leading up to is whether you think, I agree, that the ordinance has not been put into effect yet but a postcard would suffice, and I take it you do?
James A. Major: I would say that would be sufficient.
Lewis F. Powell, Jr.: Right, now, would you file out and discuss for an appropriate theory on how you think that sort of regulation would prevent crime?
James A. Major: Definitely not.
Lewis F. Powell, Jr.: It would not?
James A. Major: No, sir.
Lewis F. Powell, Jr.: Do you think the ordinance does not serve the purpose for which it was enacted?
James A. Major: Definitely.
Lewis F. Powell, Jr.: Does that not dispose of the case?
James A. Major: I call to your attention, in the opinion of the Supreme Court which you will find on A11, I beg your pardon, that is on the dissenting opinion, but on page 87 quoting from that opinion, “at oral argument the attorney for plaintiff Hynes candidly admitted as indeed he was obliged to by the circumstances that he conceive of no less a form of intrusion on the right of free speech other than absolutely no intrusion than the identification device here. Now, contrary wise, Justice Harshman on whom the appellant relies and comments him on his learning, says this “the Oradell ordinance,” and I am reading from A11, “the Oradell ordinance which, in its amended form, merely requires a single registration by each canvasser during each campaign solely for purposes of identification would on its face appear to impose no serious burden on the exercise of First Amendment rights.” Then, having said that, he goes on to imagine what might happen. Now, after all is said and done, the best we can do is draft an ordinance which we think has fit everybody, and of course if you draw the language to its extreme, I suppose you can make it almost nonsensical, but as I say, that is the purpose we had in mind, identification and not only that and, in the brief that I filed here, I have pointed out to the Court that the last thing in the world we want to do is deprive Hynes or anybody else of the right to come in and solicit so long as we know who they are. Now, Justice Pachman, in his dissenting opinion referred to some of the cases which are before this Court, particularly those involving Jehovah Witnesses and the like where they were very much in the minority. As I have heard it said many times, a majority does not need a constitution and a majority does not need anything else, got the votes. Now, in this particular case, I cannot conceive that this ordinance or any of its prototypes enacted in other places would prevent democrats or republicans or anybody else from soliciting votes.
Byron R. White: Well, does the ordinance not require you to register while a campaign is going on?
James A. Major: Does it not require what, sir?
Byron R. White: When do you have to register? When do you have to identify yourself?
James A. Major: Before you start soliciting from house to house. If you are not soliciting from house to house, you need not register with anybody.
Byron R. White: I understand that, but do you think that you have to say what campaign you are interested in?
James A. Major: I do not know if he would do to go that far.
Byron R. White: You mean you just send in a name and just say “someday I am going to either solicit for a charity or solicit for a candidate for office.”
James A. Major: I would definitely say that it might be preferable to say --
Byron R. White: Well, how about is it required? Is it required to identify the campaign that you are interested in?
James A. Major: I would think so, yes, I would think so.
Byron R. White: And do you have to say what side you are on?
James A. Major: No.
Byron R. White: No, but you do have to say what campaign you are going on?
James A. Major: I would say that a letter to the Police Chief that “I am so and so and I will be soliciting house to house in Borough of Oradell in support of my candidacy” would be sufficient. I do not think that a letter that “I will solicit house to house for some unnamed cause or some unnamed person” could answer the question of identity. The question is what are you doing in the town?
Byron R. White: So you do have to tell the police for whom you are going to be soliciting?
James A. Major: That would be y interpretation, yes sir.
Byron R. White: And you do not think that is -- you do not think that would deter anybody from soliciting?
James A. Major: No, sir, and in the dissenting opinion below, it refers to what is called chilling, whatever that means. I will take it. I think it would have to be pretty close to a freeze to deter the average political candidate from announcing what he is running for because unless he says that, I do not know how I can solicit votes.
Byron R. White: Yes, but this does not apply just to can candidates, it just applies to anybody who is soliciting on his behalf?
James A. Major: I suppose they are going to solicit signatures for a nominating petition, sir and they ring a door bell. Surely, they would have to say “this is a nominating position for Mr. Hynes and Mr. Burn or somebody or other, would you sign it” and what they are running for. Otherwise, you would be put in a position of saying “here, I have a petition, would you sign it” and in so far as amenity is concerned, assume it will take the town a size of Oradell that you are stopping at house to house, it becomes known that you are soliciting. Now, in all of these cases, I recognize fully that you have competing principles driving for mastery. The last thing in the world that we want, as I said, is to keep anybody from running for office or for soliciting. We thought this was a way we could do it. Now, in the arguments made here which was not made below, we have this question as to a type of identification and so forth and so on. What we wanted to find out and what we dropped in the laps of the Supreme Court of New Jersey when we amended the ordinance is can we do this? Now, if it is a fact that there are some facets of this ordinance which require amplification, no reason in the world why that cannot be done. The point that we are leaving with the Court is we would like to know if consistent with the constitution, we can adapt an ordinance towards this end and the reason for it is quite obvious. Now, they said to us “no testimony taken.” Obviously, the Trial Court proceeded on what is called a facial attack on the ordinance. If there was, in fact, some question as to whether the police needed this kind of an implement that testimony could have been produced by the number of unsolved murders. As a matter of fact, while this case was pending, in the adjacent town of Howell, a woman by the name of Hynes not related to this petitioner was taken from a home, taken some place and killed, from her home. Somebody is going to say “well, are the women of Oradell not constituted of sterner stuff?” The answer is, “apparently they are not,” but that is the point I leave with the Court. We are interested in this $64 question, is this a condition subject to municipal regulation? If the particular ordinance goes too far, that is one thing, but as I understood, at the trial level, the Trial Judge said “you cannot do it at all” and there is where we parted company.
Warren E. Burger: Mr. Taylor. Do you see anything in the ordinance, Mr. Taylor, that requires you to identify the particular objective of your solicitation, that is, would it be sufficient if you sent a postcard and said “beginning next week, I intend to solicit support for my favorite candidate in the upcoming election”?
Telford Taylor: If the question, Your Honor, is whether it can be done by a postcard, that is to say by mail, that is one matter to which the New Jersey Court did advert, but in a somewhat ambivalent way. It is on page A5 of the appendix and the Court said “the requirement may be satisfied in writing” suggesting that resort may be had to the mails. I was going to make reference to that in connection with Justice Powell’s question. Of course, that does not seem to me to be an interpretation. It is a suggestion. This might be so. I believe that my basic answer to your question, Mr. Chief Justice, is that on most of these matters the ordinance is impossibly vague. It does not tell us. I think it does tell us the answer to Justice White’s question about campaigns because there is this sentence that the notification shall be good for the duration of a campaign or cause and it is hard to see how that can be implemented unless the campaign or cause is specified. Whether you have to say which side of the campaign, Your Honor, is a further question which, again, I think the ordinance gives us no answer. Might I just say, again, in response to Justice Powell’s colloquy with my brother at the bar here, I think, he remarked that the ordinance is not yet in effect. I do not believe that is so. The relief granted by the Trial Court was declaratory only. That, of course, was reversed in the Supreme Court and my understanding is that the ordinance is in effect what the practical result has been in terms of the administration of it. The record is, of course, silent on it. I believe the ordinance is now in effect.
Warren E. Burger: New Jersey practice, if you are that familiar with it, could not the Courts, as most Courts could, have a narrowing construction of this ordinance say that you need not specify a party or a candidate, but merely are required to say that you will be soliciting support in connection with that election?
Telford Taylor: Well, I must confess that I do not know in detail the New Jersey decisions on the scope of an Appellate Court’s interpretative power there.
Warren E. Burger: (Inaudible) I mean, the State Courts --
Telford Taylor: That is why I say I do not know the scope of New Jersey law on the --
William J. Brennan, Jr.: (Inaudible)
Telford Taylor: I should hope so, Mr. Justice Brennan, yes.
Byron R. White: Do you suppose a state could say to solicitors “please knock before you enter the house”?
Telford Taylor: Yes, I should think so. If they do not, probably the criminal law would --
Byron R. White: Well, so that is another criminal law like this one is. It is a condition on this criminal law, is a condition on the place of where you are going to solicit. If you want to enter a private property, we want to know who you are and if you want to enter on private property you are supposed to have consent before you enter?
Telford Taylor: Well, this Court said in Bird against Alexandria that failing some explicit withdrawal of the invitation on the part of the householder that the front pass or the door knocker relieve the entry of the character of trespass.
Byron R. White: Up to the door?
Telford Taylor: Up to the door.
Warren E. Burger: I do not know that any times are indicated here, but would you think it would be fatal to such a provision if it said “during daylight hours only” or “not after 9 p.m.”?
Telford Taylor: The latter, certainly. It would seem to me that a restriction of that kind ought to be okay. I think we have to bear in mind that, with political canvassing, contrary to the impression one gets from this ordinance, it is not very effectively done until the latter part of the afternoon or evening when the working members of the family of which ever sex, Mr. Chief Justice, are at home when one would go canvassing until that was so. So that the emphasis here on the daylight hours and all when the working man or a woman is away, it seems to be wrong in this place. I do not believe in some summary that the ordinance exhibits a rational connection between the announced objective and the terms it imposes.
Warren E. Burger: In other words, the limitations of daylight hours might be unreasonable with limitation to canvassing up to 9 p.m., would be reasonable?
Telford Taylor: Well, certainly the impingement of First Amendment values would be much than a 9 p.m. case. I have stressed that because of the recent decisions of this Court have exhibited great solicit to for the function of canvassing and their privacy too.
Potter Stewart: Mr. Taylor, the basic ordinance to which this is an exception --
Telford Taylor: Yes.
Potter Stewart: -- number 573 is, of course described in more detail --
Telford Taylor: Yes.
Potter Stewart: Among other things, it has a 9 a.m. to 5 p.m. restriction, but it is my understanding, you tell me if I am mistaken in that understanding, that none of the provisions of 573 carry over it into this ordinance. This ordinance stands and falls on its own?
Telford Taylor: Only the penalty provision that is carried over by way of --
Potter Stewart: You mean that was remedy?
Telford Taylor: That was remedy, yes, Your Honor.
Potter Stewart: So none of the substantive provision carry over into the ordinance now before us?
Telford Taylor: That is my understanding, that is my understanding. Thank you, Mr. Justice.
Warren E. Burger: Thank you gentlemen. The case is submitted.


Earl Warren: Number 6, Daniel J. Sentillies versus Inter-Caribbean Shipping Corporation. Mr. Kelner, you may proceed.
Milton Kelner: Mr. Chief Justice, may it please the Court. I represent the plaintiff in the trial court. The seaman was injured abroad ship. After a verdict before jury and the District Court under the Jones Act, the verdict was affirmed on post trial motions by the United States District Court Judge. On appeal by the defendant, this verdict was reversed by the Fifth Circuit Court by a 2-to-1 decision and opinion. There is a dissenting opinion written by that Court. The issue presented to that Court and presented to this Court is, did the plaintiff present at the trial sufficient evidence that his fall aboard ship contributed to activate or aggravate this pre-existing dormant tuberculosis. The facts basically were these. This man was aboard ship as an engineer, the weather was rough, and the emergency arose whereby he had to attend to refrigeration engine in the forward portion of the vessel. Safety lines had not been strong on his way back after having taken care of the fire. The vessel suddenly fell away from under him, the -- the 20-foot wave at vessel is toasting at a 15 to 20 degree angle. When he fell, he fell on his left side injuring his side, his hip, his head, his shoulder, his leg. A wave swept over him, washing him at distance of approximately 24 feet, and unfortunately, his legs were spreadly -- was caught on the chain at the edge of the vessel. In the process, he inhaled water. Before this accident, he had felt well and knew nothing whatsoever about any chest difficulties, chest complaints or tuberculosis. Immediately after this accident, he felt badly, he had a cough, a heavy cold, he felt as tough he had the flu. The ship was tree days out of port, the Port of Miami, and in those three days, the capital of the vessel treated him with pills, penicillin, treated him for this heavy cough, heavy cold. When he hit the Port of Miami, he thought all he had was a cold from being washed by the water and the blow to the side which restricted his breathing and so on. And he went up to New York. He was at the Hotel New York and couldn't shake the colds and went to see the hotel doctor up there. The doctor examined him so that he had a flu at level in his lungs and said that he needed hospitalization immediately. The plaintiff returned to his home in New Orleans, went to see his family doctor. Now, his family doctor had examined him regularly, no less than five or six times in the year before the accident. X-rays of this man's chest take him as recently as too much before he fell, had fail to disclose any tuberculosis. On re-examination of this X-rays, however, there was found to be a small infiltration, a small healed tubercular lesion that was missed on the initial examination. Now, it is to be noticed that in this factual situation, the healed tubercular lesion, small one, was on the left side and the left lung. This man found, received those (Inaudible) on the left side, left side of his lung. The tuberculosis, when it developed, full-blown tuberculosis was in his left lung. The medical testimony was that a blow to the chest can caused an inactive tuberculosis to become active full-blown and progress rapidly. Now, what test then is to be applied to determine whether or not the blow to the chest plus this other factual background that I've given to you, aggravated or activated his preexisting dormant tuberculosis. The cases are uniform, and there is no question as to the law. The test is that probability is the chest, namely, did the blow to the chest probably aggravate his preexisting condition? Now, there are three possible test that might be applied. We might use the test of absolute certainty. The plaintiff is not required and no plaintiff has ever been required to prove any such thing with absolute certainty. The test might be possibility and possibility is not a sufficient test, so the test is probability. Now, then, what proof do we have that meets this test of probability? We have two doctors. One of which, eminently, well-qualified tuberculosis specialist who stated, he was one of the treating positions. He stated, and we've quoted his testimony in our reply brief. He stated that this blow in his opinion probably aggravated the preexisting condition. Another doctor stated not -- not less than three times, and we've quoted that in our reply brief, that the blow probably aggravated his preexisting condition. Now, I suggest that the proof presented to the trial court meets the test of probability and that the jury was entitled to -- to believe the proof.
Speaker: Is there any issue as to negligence here or just --
Milton Kelner: No sir.
Speaker: -- provision?
Milton Kelner: The only issue that was presented to the Fifth Circuit was the issue of medical causation, it was -- this was the sole issue. I suggest that this opinion of the Fifth Circuit Court is self-contradictory and is a most unusual opinion. I suggest that the Fifth Circuit Court ignored the testimony of both these two doctors. And I suggest that this Fifth Circuit opinion require the plaintiff to prove, not probability but certainty, because in reading the opinion, you'll see that the Court said, “Dr. Jacobs did not eliminate all other causes, but we are not required to do that.” Now, I suggest that this opinion says the test is probability. In the opinion, it says, “Dr. Jacobs testified probability.” Yet, we say that that does not meet the test. Now, there is one other matter that should be mentioned. The plaintiff, when he felt, sustained certain admitted injuries even a part from his tuberculosis, namely, the headache that he had for a while that a blow to the chest, the scrape marks, the bruises that he had, the injuries to the leg, to the hip. How can the Fifth Circuit Court disregard the admitted proof of positive injuries? In the defendant's brief, they don't even bother to try to meet this because it can not be met. They -- the Fifth Circuit Court, by this opinion, has, in effect, attempted to reevaluate the evidence and supplant its evaluation of the evidence for that of the jury. And I suggest to that appellate courts have enough to do without reevaluating and acting as a jury. If I have not proven probability by four statements in the record by doctor stating probability, then how many times must I get it into the record that we have probability? I suggest that the plaintiff -- now, there -- I should mention that at the trial level, this matter from beginning to end was bitterly contested right down to the wire on every witness on practically every question. And it is true that the jury could have reached the same result that the Fifth Circuit reached. But fortunately, for the plaintiff, it did not. On appeal, the plaintiff is entitled to all of the favorable testimony and inferences in its favor, and counsel for the defendant cannot state that any of the facts I've stated are not supported by the record. Now, the Fifth Circuit, in its opinion, has failed to follow even its own opinions. Under the -- the test under the Jones Act, for example, as they have stated it in the Liberty Mutual Company case, 171 F.2d 723, is the same that I have enunciated, namely, a question whether the disability was approximately caused or materially contributed to by his accidental injury. Now, in that case, as in this case, the witnesses' statements on cross-examination are somewhat inconsistent but said the Fifth Circuit. In the Liberty Mutual case, the witnesses' inconsistent statements present a question for jury, it is the function of the jury to reconcile or believe or disbelieve. The opinion itself, hence the most unusual, the opinion itself, Fifth Circuit Court of Appeals opinion cites the case of Chicago Great Western Railway Company versus Smith, 228 F.2d 180. If you read the opinion, you'll see that we have the same basic problem. The doctor on direct examination stated his opinion that the acts, and it caused the plaintiff's injuries. So on cross-examination, the doctor said, “The injury could have been caused by the accident or lifting,” and he could not tell which had precipitated the plaintiff's injuries, nevertheless, said the Eight Circuit in that case but again re-affirm by the Fifth Circuit by citing it. That was sufficient to support the jury's verdict. Now, under the Ferguson case, decided by this Court, 352 U.S. 521, the test under the Jones Act whether the proofs justify with reason the conclusion that the employer's negligence played any part even the slightest in producing the injuries. We respectfully submit that we have more than met this proof. We respectfully submit that the Circuit Court of Appeals has denied this man by its verdict, has deny this man his right to a trial by jury, has taken away his jury verdict, has attempt to the act as a jury, has usurp the functions of the jury. We ask that the verdict to reinstate it.
Earl Warren: Mr. Beckham.
Robert J. Beckham: Mr. Chief Justice, may it please the Court. I am most strikingly impressed by the admission of my adversary that there is no issue here as to negligence that the only issue here is involving a factual situation, and that his complaint is that an appellate court sat in reevaluation of the facts. And I think it's obvious that the only reason we are here today is because the petitioner now seeks to have this Court sit a reevaluation of the facts. The very thing he decries has having occurred in the Fifth Circuit. I would like to make these comments about the -- the argument of the petitioner. I think the Court will find several factual inconsistencies in that argument by reference to the record here. This gentleman was about 40 years old. He was hired by the Inter-Caribbean Shipping Corporation as a general manager and the overseer of the company operations in conjunction with the management of a banana boat running from Florida and from the Gulf Coast down into Central and South America. Mr. Sentilles was and is a refrigeration engineer, he is not a seaman. Mr. Sentilles, on this occasion, as the manager of the vessel, signed himself on and placed himself on the ship as a member of the crew. This, of course, was done without any opportunity for the company to have a physical examination of the man or to go through the ordinary and customary pre-sign on investigations and examinations that often occur when seaman first go to sea for a shipping company. Mr. Sentilles is being in charged of the vessel, in charged the operations' bypass such a procedure with himself. Now, after this accident, it became apparent for the first time through the histories that he gave to positions both prior practice and in the hospital that he had a most remarkable history, remarkable in that it was right down the line consistent with a slowly developing progressive tubercular condition in the very area that he seeks to him liability upon this defendant for. It is shown by the record that for a period of at least six to eight months, Mr. Sentilles had persistent nights which -- persistent at a recurring colds that he was unable to shake off, a deep and persistent hoarseness, a general tired feeling which the doctors refer to his malice and most significantly for some eight years prior Mr. Sentilles had been a -- a confirmed diabetic. And I might a diabetic whose condition was not adequately kept under control by Mr. Sentilles and the words and then the testimony of his family doctor. And I think that the Court will find also in a reference to the record that upon retrospect and upon examination by qualified tubercular man, the X-ray's in 1950 and in 1952, before this alleged incident in 1953, showed a developing progressing tubercular condition in the lung. Now, it's true that the family position, an admitted general practitioner without much experience and diagnostic procedures for tuberculosis did not read these films in 1950 and 1952 as reflecting tuberculosis. But it is highly significant that the experts and the merchant marine hospitals in New Orleans, the tuberculosis men, the chest men when they saw these films and examined the X-rays in conjunction with the man's history and statement and with the entire record before them, found an enlargement and a constantly progressive development being reflected in these films. It is highly significant also that one of the own -- one of the plaintiffs and the petitioners own witnesses, and I might interject here that the defendant and respondent was at the trial and still is content to rest its case on this issue with the plaintiff's own testimony. There is no medical testimony was adduced at the trial by the defendant. So that everything before Your Honors today was brought and injected into the record by the plaintiff-petitioner. But it is highly significant that one of the doctors stated that he himself TB man had made an extensive survey and had found that diabetics such as Mr. Sentilles or in his own words inordinately susceptible to tuberculosis, perhaps, five times as great as a non-diabetic. And so, we now go into the medical evidence to see just what was developed by the plaintiff at this trial. We say that the Court of Appeals for the Fifth Circuit most aptly and correctly characterizes this testimony for if there was ever a case where a failure existed, with reference to prove, we believe this is it. Dr. Sherbenie, the family position the man who they say had seen him over and over again for years without ever suspecting this. Dr. Sherbenie's words, “I do not honestly know of any case that was aggravated by trauma or a blow”. Dr. Lerdo (ph), No record, no showing, no finding that this man had any rapid acceleration of symptomatology, no finding of anything that have happened. And he saw the man within a week or two after this incident. Diagnose the case as far advanced active one year, active one year. And this diagnosis was made within, as I say, two weeks following this incident in 1953. And then Dr. Jacobs, unable to say “Whether or not the diabetes or the trauma would be more likely or would probably have anything to do with an aggravation of this man's condition”. And finally Dr. London, Dr. London never saw the plaintiff. He was brought to testify and answer to hypothetical questions. And in Dr. London's own words, on several occasions, he was unable to say whether it would be malnutrition, infection or trauma. And I think that this is perhaps the most striking feature of the entire record that the trial judge on about three or four different occasions characterized that this witness' testimony, this witness whose testimony and whose testimony alone really is being urged by the petitioner as sustaining his position, Dr. London. And if the Court will refer to the record or to the briefs where we cite the record, as to pages 87 and 88 and 89, you will find on three or four separate occasions, the words of the trial judge in effect saying the doctor says he can't tell. The doctor says that it could be one of the three. And this was his -- counsel has stated a bitterly contested proceeding and objections were made and -- at this point, in the record, an attempt was being made to say, “Well, the doctors already said this, we've been through this. Your Honor, lets don't let him be harassed.” And on each of these occasions, the Court says on page 87, I think he has answered it, he said, he couldn't tell. That's on page 88. He said he can't tell whether all three of these or one of them or two of them or even other factors might have precipitated the condition. And on page 89, I think he said, “Could have”. Well, that is why we're here.
Speaker: What are the (Voice Overlap) --
Earl Warren: There is some conflicting testimony with that, isn't there some different language by the same doctor --
Robert J. Beckham: I think that there is some different language, Your Honor?
Earl Warren: Yes. Well, didn't he say this on one occasion, “I would assume that this exposure such as it was to the inclement weather and the trauma to the chest probably played a rule in making petitioner feel worse at this time and probably aggravated this condition.
Robert J. Beckham: I think he did he say that, Your Honor.
Earl Warren: But -- well, he did, then the -- it was in the record.
Robert J. Beckham: Yes, sir, I think he did.
Earl Warren: And didn't he also say this when -- when the doctor said or when the judge said, I think it was the judge, “I'm asking you, isn't it your testimony that you cannot tell us which on of those was the cause with any reasonable probability knowing the background that the man had.” Answer, “I have already testified what I thought or that I thought, that the trauma to the chest was the precipitating factor.”
Robert J. Beckham: Yes, sir, he did testify that.
Earl Warren: Well, couldn't the jury -- couldn't the jury reconcile those statements if it wanted to do so?
Robert J. Beckham: I think not, Your Honor, because I -- I think that if you will examine the record immediately after the doctor makes his statement why its apparent that this is a complete contradiction of what he said before, and the issue has gone into again in an effort to -- to get the doctor to say what is his testimony. And I think that the final testimony of the doctor.
Earl Warren: Well, following that very, very thing the question was “Restrict yourselves to what we know here. To what we know, what would you say are the three possibilities on this man? Would they be the three already told us about?” Answer, “From the information I have gathered from the testimony from the previous positions that examined the patient and from the other information, I would feel that this man had an aggravation of his condition following this incident, whatever it was that he injured his chest and the trauma produced an aggravation.” That's on page 88 of the record.
Robert J. Beckham: And then my point --
Earl Warren: Then -- then later for this he was asked, “You have stated that the blow of the chest and diabetes in your opinion in this case were both contributing causes to the aggravation of the -- of the preexisting dormant condition, is that correct?” “Yes sir.”
Robert J. Beckham: Now, Your Honor, the last statement that you've read was not made by this particular doctor but another doctor --
Earl Warren: Another doctor.
Robert J. Beckham: -- on -- on deposition.
Earl Warren: Yes. But as to the other, well do or didn't that raise a conflict that the jury could resolve and that the trial judge on the motion for new trial for the -- determine.
Robert J. Beckham: I think it certainly was for the trial judge. I think it was for the trial judge.
Earl Warren: How could you --
Robert J. Beckham: I think however that you cannot, I don't think that one isolative statement in a record, one isolated statement when viewed in the entire contents, I don't think that one isolative statement is sufficient when you're dealing with the term of medical probabilities which, by its very nature, is something a jury cannot, as it cannot, so many commonplace everyday things draw the same degree of inferences from medical testimony as it can from, say, causation between negligence and the injury. I don't think that a single and isolative statement which is immediately withdrawn and retracted from -- on cross-examination. I don't think that that is sufficient for a jury to infer from because, as I say, these things are peculiarly within analogy of the position except to the extent that I think this Court could take judicial knowledge that tuberculosis is a slowly developing process. It's not a disease that comes upon a person with a snap of a finger.
Hugo L. Black: What about the -- they call galloping consumption?
Robert J. Beckham: Galloping consumption, Your Honor, I'm afraid is before my time. I -- I'm not familiar with the phraseology. But I do think and it has been done in other cases that the courts have taken judicial knowledge of this fact. And I believe you will find cited in our briefs, authorities to that effect. And we say that -- that the characterization of the testimony by the trial judge, I think, he, being there on the scene, he is knowing -- frankly, it was quite a shock to us when he did not.
Speaker: What do you say about Judge Reeves' point in saying (Inaudible)?
Robert J. Beckham: Well, as I recall Judge Reeves' position, it was that he felt there was enough there and that the jury could infer. And as -- that goes, I think, to my point, Mr. Justice, that a jury cannot be and should not be given the same latitude when -- when dealing with a technical and complicated medical question which is wholly be -- wholly formed to the commonplace knowledge of -- of a layman. I don't think that a jury should be or is entitled to be accorded the same degree of latitude. I think that if we're going to find any bounds at all and we have certainly have them up to this point by the excepted criteria of proving by medical probabilities, they doesn't seem to be any -- any conflict as to the law, and that's why we feel that the case perhaps is a strange one to the -- before this very Court.
Hugo L. Black: Whether these particular judges, these two judges having a special competence in this field of medicine?
Robert J. Beckham: No, sir, I do not think so. I don't think they had any special competence. But I think they were certainly competent enough in the law to see whether or not a burden had been met that was required under the law.
Hugo L. Black: They had to go a little further, isn't it -- didn't it? They had to decide whether conflict of evidence could be decided one way or the other.
Robert J. Beckham: I did not hear Your Honor.
Hugo L. Black: Didn't they have to decide whether conflict of evidence should be decided one way or the other?
Robert J. Beckham: No, I don't think that, Your Honor. I don't believe the Court attempted to resolve a conflict in the evidence. I think that the Court attempted to make commonsense -- to make sense out of the record, same as the trial judge did. And that's why I say it's most -- to me, most striking that the trial judge on the occasions said he did, I think, four different times, who was there and listing and -- and watching as this trial proceeded.
Hugo L. Black: What did he do?
Robert J. Beckham: In each case, and he said the -- the doctor has stated.
Hugo L. Black: But what did he say in the final analogy?
Robert J. Beckham: Well, that -- that's he -- he disagreed with us. And that was certainly a shock. Now, I tell you that [Laughs] because --
Hugo L. Black: Who decided the case?
Robert J. Beckham: Judge Choate.
Hugo L. Black: Judge Choate.
Robert J. Beckham: Emett Choate. And -- ordering the trial of the case, the judge on the testimony characterizes it as being could have possibility. He said he -- he can't make a statement as to which of the three. And yet, when we present him with our post trial motions, he did not agree. But upon appeal, the record had been tried to -- prepared, it was not available for the trial judge at the time we had our post trial motions. And when the record was presented to the duly constituted court and upon examination in argument of the record, they found that our position was correct. And it's our feeling that this case -- as a case on the books, certainly, is not inconsistent with any prior decisions of this Court, it doesn't circumvent any established policy of this Court. We can see no reason why the matter should be reversed on the law on the facts. Adn we therefore suggest and it is our position that the writ either should be dismissed as improvidently granted or that the judgment and decision of the Fifth Circuit should be affirmed
Milton Kelner: I have only one comment to make, Mr. Beckham, and I tried this case in the trial court. His argument today is the same summation he gave to the jury. It was a very final event. It's a -- very final now. But I still think it's a question for the jury to decide. The question was raised as to the judge's dissenting opinion. You'll notice that in my briefs, I did not mention the judge's dissenting opinion because I could find no case to sustain that dissenting opinion. In fairness to this Court, I should mention that I checked this carefully as I could for limit of my limited ability and found no case. Did this dissenting opinion present a very interesting problem? Is this question so different from every other question that we require special rules? Or is this a matter of proof like any other item of proof? That's again an assuming thing.