Claude Pepper: -- habitual offender of the statute. Now, the reason I say that it appears that the Florida Supreme Court has not decided the question is this. In the subsequent case of Milan versus the State, a Florida case in 1958, when that question was presented, then the Court erred -- as to the second question, their Supreme Court had said -- the -- the Supreme Court of Florida held that the general statutes of limitations barred prosecution for an offense. Now, here is the language of the Court, "The first of the above questions," as quote, "is not before the Court because there is no showing that appellant had actually said his entire sentence for the second offense, before the amended information was filed, charging him with being a second offender." On this question, there is a difference of opinion among the members of the Court but as it is not right for determination under the record here, no useful purpose could be served by discussing it. Now, what our suggestion want to do that the Florida Supreme Court in that later case, indicating that they didn't decide this question because there was a difference of opinion among the Justices of the Court, this Court might well apply the doctrine that where the State Supreme Court has not made an authoritative interpretation of a statute, this Court, when the matter is properly before it, may place its own interpretation upon the statute which in this case, to avoid the question of unconstitutionality on the ground of not observing due process, would require the Court to construe the statute to mean as the Court, in the Nelson case indicated, it might have been intended to mean that it only gave jurisdiction to the Court after a man had begun the service of his sentence or after the expiration of a term. But they didn't go so far as to apply to a case where a man had completed his service of the felony sentence and was free without any previous notice, without any concealment or without any conduct on his part that deterred the State from -- from bringing him within the encompass of the habitual offender statute. So I'm saying, Your Honors, is that I would be grateful if the Court would take into account and keep in mind that if you construe the statute that way, then, unless they've got some other authority upon which to hold a man, this statute would not be a sufficient ground for his incarceration. If they've got other grounds, of course, alright, let that appear. Alright, and to avoid an interpretation of the statute that would raise a serious question of due process as to whether it could apply in case the State had sat by with no fault, at least on the part of the defendant, and allowed him to serve his sentence, get credit for his good time, become presumably good citizen again, and then be, once more, apprehended and incarcerated. Now, add all of these, if you can do it in one instance, in this case, he had two years and he served, let's say, one and three-quarter years. He -- the judge could have given him 10 years. Then, if what I say is not substantially true, Your Honor, what would prevent the Court from the first time he was apprehended under the habitual offender statute to say, “Alright, I'll give you three years this time.” He goes and serves the three years. Then, he gets out and goes about his business and five years later, they're bringing him in again and give him some more years. And he goes and serves again and they wait 20 years and bring him up again and he serves some more time. If there's not some constitutional principle, there's no statutory prohibition here in this Act against the Court waiting 50 years after he had finished the service of the felony sentence for which he was sentenced and then bringing him back again, after he's lived with family and lived an honorable life, and incarcerating him again for having been a habitual offender. I hope it may be within the scope of -- of this case, in the Court's review of it, to consider those questions, as well as the counsel's questions. Thank you.
Earl Warren: Thank you.
George R. Georgieff: Mr. Chief Justice --
Earl Warren: Mr. Georgieff.
George R. Georgieff: -- may it please the Court. In essence, this question becomes one of whether or not the Florida Supreme Court, by denying this man -- this man's petition for habeas corpus, ruled in effect that Judge Amidon, by not granting him an extension of time to allow his counsel to appear in court to represent him, denied this man due process such of you -- such as you have recognized in a number of cases with which I don't take any exceptions. Now, if it is any more than that, I'm not aware that it is. It simply is the question of the discretion used by Judge Amidon in either allowing or not allowing this man's counsel to appear.Now, that has to turn on one thing and one thing only, as I see it. Despite the existence of Cash versus Culver, McNeal versus Culver or Capern, one or the other and Chandler versus Fretag, the Supreme Court of Florida could have relied on your decision in the case of Betts versus Brady wherein this Court concluded, albeit a number of the members who participated in that opinion are not here today. There, you concluded in essence that if it did not result in a fundamental unfairness to deny counsel or to not allow counsel, that it wasn't such as would cause a reversal of a conviction in the state court simply on that basis. That's my point here today. If I can demonstrate to you that what happened to this man, as a result of the activities of the criminal court -- record of Polk County, was not any different than what have happened to him had counsel been there, then I think am free to assume that I fully take myself out of the ambit of not only Chandler versus Fretag but also Cash versus Culver on the -- on the status of Betts versus Brady, that is to say that you have not yet reversed it. Now, I think it --
Earl Warren: Do you think Betts versus Brady have to do with a man having a right to be represented by his own counsel?
George R. Georgieff: No, sir, it did not. It --
Earl Warren: Though -- well, that's what this case is, isn't it?
George R. Georgieff: In -- in Betts versus Brady, as I understand it, was a question of denial of counsel, the appointment --
Earl Warren: That's right.
George R. Georgieff: -- of counsel.
Earl Warren: That's right.
George R. Georgieff: I am -- it's true that I can't place it squarely within Betts versus Brady but I think, before I'm finished, I'll be able to equate it with the circumstances in that case. But, I think, in fairness to counsel, since he did not argue any points which he urged to be included in this record, that I ask the Court not to consider any references that I have in my brief to matters they hold the record. I have made one or two in response to pleading by counsel, and I suggest now that the Court not consider them, wherever they may appear.
John M. Harlan II: Where are they?
George R. Georgieff: They were in reference to affidavits executed by the trial judge and by Mr. Laird, counsel in this case. I referred to them, and I don't think it would be fair to have you consider my argument surrounding those instances since Mr. Pepper has stated that he is not going to proceed on matters that are not literally a part of the record before you today. If the Court please, the question of the constitutionality of this statute which was raised by the petitioner, the one that assails it for the possible basis that in its title, it lacks sufficient notice to the electors of the State that they did not know what it included. His answer was very simply by the case of Baggett versus State at 22 So.2d for the reenactment of a bill into law every two years or whenever the legislature needs, cures the defect that might exist in the title. Now, it doesn't cure any other constitutional -- constitutional defect except a title one. That is to say, when it becomes a part of the codified laws of the State, you no longer rely on the title for information, but you do on the codification by the legislature in its adoption as a part of the revised code. Now, the question about whether or not this man could have been arrested on the basis of this, since it does not charge an offense as such, I think this Court has held several times that the crime of -- or rather, the situation in which a multiple offender finds himself is not one of an offense. That is not a crime and therefore, the position was advanced by the petitioner. Since it is not a crime, it is impossible to charge it in a warrant since the statutes of the State of Florida require that a warrant specify the offense for which a man is sought.
Earl Warren: Well, doesn't that depend upon the statute of the particular State? In some States, I think, habitual offender is being charged with another crime.
George R. Georgieff: That is true, sir. In Florida, he is not.
Earl Warren: He is not.
George R. Georgieff: He is not.
Earl Warren: The Supreme Court has held that, hasn't it?
George R. Georgieff: That's correct, sir. And --
Earl Warren: Yes.
George R. Georgieff: -- I say, by the pronouncements of 775.09 and 775.11, we won't deal with 775.10 because that involves fourth offenders and it's not in issue here, but 775.09 provides, and 775.11, the procedure which follows when a man does commit a second felony and is proceeded against, that there shall not be an information drawn. Now, if we go back to 907.01 in Florida statutes, it provides that when an indictment or an information is returned, indictment filed or information returned, that a capias shall issue for the arrest of the person, and that is very simply what happened here. The record will reflect, I think on page 4, as filed in this Court that a capias was issued, bond set at $5000 and the man was, as the Senator correctly stated, picked up in Volusia County, some distance away from Polk County and brought back. Now, the physical warrant or a capias was not -- obviously not given to the deputy, but he was picked up on a hold order. That's done 1000 a day throughout the country. I find nothing offensive in that and of course, that he was against -- that he was brought in court against his will, I'll cheerfully concede. Most of them are. When he was brought into court, he did not suggest to the trial judge when his case was called for arraignment, and he was asked these -- these questions, whether or not he, in fact, was the man who was named in this information as having committed and found guilty of and served sentences for these other two offenses. He did not say “I don't know why my lawyer isn't here, but he's on his way” or give some excuse. I contend that he, at least, should have done that. He should have told the judge that there was some reason why the lawyer wasn't there or made it known to him that he was trying his best to get the man there but couldn't. Now, in the state of the record, I can't do anything but -- but imagine or suppose what the circumstances were, but I submit that if 10 defendants were in that same court that morning and each one of them asked for a continuance for that purpose, that it would, of course, destroy any ability to hold a trial. I don't know how long it took the lawyer to get there or that, in fact, that he had one except as he says in his brief or in his petition. Now, I submit that the simple refusal of the Court, even if we accept all this as true, to grant a continuance in order for counsel to get there is a little different than a denial of the right to secure counsel. It's simply one in which the Court is seeking to exercise some control over the process which it is about to administer. And I don't think that it is quite the subject of condemnation that others have been for similar areas but not identical. Now, the time limitation is it appears a very serious question here, and I don't know that the Court will ever have to get to it, I really doubt that you will, but to the extent that you may find it necessary to pass on the question of whether or not it is proper to proceed against the man as a multiple offender after he has completed the service of his second sentence, I will address this for your consideration. I'm satisfied that the Court is quite aware that a number of felony crimes, not only in the State of Florida, but as well throughout the several States and possibly in the federal system, are susceptible of a penalty which -- which includes nothing more than the payment of a fine. Now, let us assume that a man comes into court and is charged with a felony properly but in that felony prosecution and charge, there is an alternative given to the trial judge. He may either sentence the man to penal servitude or he may assess against him a fine. In either case, the man is guilty of a felony. It's only the punishment that is allowed to be discretionary. Then, let us say that that man is fortunate enough to have assessed against him the penalty of simply a fine. He then proceeds to the clerk and pays his fine. I should like to know how we can proceed against him as a multiple offender if we can't do it after that. We certainly can't do it while he's doing it because he's not serving anything. All he's doing is paying a fine. He hands the money over and gets a receipt, I understand, and I don't know of any way if the argument is sound that we can proceed against that man after he had served his sentence because that was the only sentence, the fine. Now, if the argument presented by the petitioner in reference to this is good, it ought to cover that situation too, and I submit that it does not. Now, the --
Earl Warren: Do you have a speedy -- speedy trial provision in your constitution?
George R. Georgieff: Yes, we do, under 9 -- 915, Chapter 915 Florida statutes and Chapter 916, the first two sections thereof, sir.
Earl Warren: How do you equate this situation to that provision?
George R. Georgieff: I'm afraid I don't quite understand.
Earl Warren: Well, here, you have -- have a situation where -- where a man has not been charged for two years or more, and after he has served his time for the offense, he was originally charged with, how -- how can you say that he has a speedy trial in this issue?
George R. Georgieff: Well, sir, I have two remarks that I'd like to make in response to that.
Earl Warren: Yes.
George R. Georgieff: First, the provisions for a speedy trial contemplate that it shall be for a crime. Second, they provide that if you do not move according to the provisions, I believe it's 916 (1), I'm not certain but it certainly was in Chapter 916, that it is an affirmative directive to the defendant that he shall move for a quick trial and if it is not done within a certain number of them, that is to say three of them, he must make three motions that he'd be brought to trial and if the State does not proceed against him or show good cause why it has not, then he is forever discharged. It is not an automatic thing unless he initiates it. There was one case I can call to mind that the Supreme Court ruled on where 29 terms of court had passed. There were six a year, 29 terms of court had passed. The man was on -- out on bond, that is different, of course, than here but in any case he made no effort whatsoever to secure any speedy trial until such time as he found himself in the prison. And then, of course, he came up and said, “Well, look what you've done to me. You waited all this time.” The Court said, “Yes, but the statute requires that you move and request that this trial be granted. If, in three terms, it is not granted, you are forever free unless good cause is shown.” So, I don't think that the question of speedy trial quite includes this situation since there was no allegation made that he did not come within it or rather, that he did come within it, or that his circumstance was one of a crime, that is to say, since this is not offense, I must assume that it is also not a crime. It is only a provision for an enhanced penalty.
Earl Warren: But he's entitled to -- entitled to a jury trial, isn't he?
George R. Georgieff: In this situation?
Earl Warren: Yes.
George R. Georgieff: But of course, he is. No question. But in any case, as I say, he made no allegation that he felt within the provisions of 916 and that he did meet the test set out by the Supreme Court of Florida for one who complains about the lack of a speedy trial. As a matter of fact, that was never raised in this petition.
Charles E. Whittaker: Well, is everyone entitled to a jury trial on these multiple offender proceedings?
George R. Georgieff: The statute so provides, Mr. Justice Whittaker.
Charles E. Whittaker: I understood the statute to so provide if he denied identity.
George R. Georgieff: That's true, sir.
Charles E. Whittaker: Well, then, that makes quite a difference, doesn't it?
George R. Georgieff: Yes, it does. I --
Charles E. Whittaker: Did this man deny identity?
George R. Georgieff: Did he deny it? He did not, sir.
Charles E. Whittaker: What did he do?
George R. Georgieff: May I read from his petition, I am quoting off at page 5, “The trial court then proceeded to read off to convictions from your petitioner's record," and then asked, "You are guilty of these two convictions, are you not?" Petitioner saying "Yes, Your Honor, but the Court," and then he proceeds. So, I cannot assume that he denied his identity and therefore, the question of the jury trial, I don't imagine, comes into play here.
William O. Douglas: Suppose the lawyer have a -- if he was present, he might see a whole nest of problem in statutes of this kind.
George R. Georgieff: Well, Mr. Justice Douglas, I was about to come into that area. My position, very simply, is --
William O. Douglas: Your -- your brief, apparently, goes on the -- which I read with interest is -- goes on the theory that, since he admitted that he was the man, and that's -- since he admitted that the two crimes have been committed, that there wasn't anything the lawyer could have done for him.
George R. Georgieff: Yes, sir, that is correct. And in response again to the reply filed by the petitioner to my brief, which I, of course, could not respond to, I stated or I will state now, there was raised the question of well, now, suppose he attacks the constitutionality of the entire statute or suppose he challenges his arrest or suppose he challenges the delay between the tiny served his sentence or was initially sentenced at the time of so-and-so.
William O. Douglas: Well, you've enumerated some of them, but there might even be others.
George R. Georgieff: It is true there may be a host of them.
William O. Douglas: Yes.
George R. Georgieff: No question on that. I -- I can't imagine now what any more would be. I must assume --
William O. Douglas: Well, one might be -- I don't know if there's anything to the ex post facto point or not but, at least, a lawyer -- some lawyers might think there was.
George R. Georgieff: The question of ex post facto, I think, though it may not have reached you and had a specific pronouncement from you, it has in Florida in the case of Cross versus State.
William O. Douglas: I understand. What is -- what are those questions that might deserve the litigation?
George R. Georgieff: Yes and for purposes of illumination, do let me tell the Court that this statute is not new by any means. It was originally enacted in 1927.
William O. Douglas: I'm just thinking of the list of questions that --
George R. Georgieff: I'd be hard put to figure just what a man might urge if he were counsel in this case.
Charles E. Whittaker: Would it have been open to, may I ask, to assert that, in fact, he was not a multiple offender in that a prior sentence was void?
George R. Georgieff: I take it that that would be an available defense. I had no reason to believe that it wouldn't, Your Honor.
Charles E. Whittaker: Wouldn't a lawyer be able to help him on that?
George R. Georgieff: I'm satisfied that he could, if he could demonstrate that that were so.
Earl Warren: Suppose he -- suppose his defense was that one of these was not a felony in some States, for instance, the crime of forgery. If in only small amounts, it's punishable by either term in the penitentiary or by term in the county jail and if county jail sentence is given, it does not constitute a felony in that State.
George R. Georgieff: That is the case in Florida, by the way, I might add.
Earl Warren: Is that so?
George R. Georgieff: Yes, sir.
Earl Warren: Now, I -- I suppose when you're dealing with the laws of the various States of the union, that would -- that might be a very -- very obvious defense.
George R. Georgieff: I would be less than honest if I said it wouldn't. Do let me say, however, that in that -- in that instance, I -- I can only contemplate within -- within the confines of what he is confronted with. The information specifically set out charging that these were felonies, that they were convictions in a certain court, and they can only be that. In a criminal court of record, they do have joint jurisdiction as to felonies with the circuit court where there is no criminal court of record. That is to say, we don't have criminal courts of record everywhere in the State. Now, if this were in -- in a circuit where they did not have any, the trial would have been in a circuit court where they had only felony jurisdiction. And I take it that the recitation in the charge that the man was charged with a felony, convicted of it, sentenced to Raiford, did serve his sentence would meet that objection on its face since all they would have to produce by the cases that come within the -- come under these sections is somebody who is acquainted with them, even only the county solicitor or the state attorney says “Yes, this is the man that I prosecuted in this Court, and he is and was guilty of this felony and this felony.” So, I don't believe that it's quite correct to say that simply because you could raise this, I think we must consider how valid it would be to a defense under the provisions of 775.09.
Earl Warren: Mr. Justice Whittaker read the statute in which it says that if he does not admit his identity, he's entitled to a jury trial. Now, suppose he said, “Yes, I'm the man who is mentioned in those two -- those two convictions, but I have a defense and -- and I want to contest whether I'm a habitual offender or not.” Is he then entitled to a -- a jury trial?
George R. Georgieff: On -- I have no doubt that he would be.
Earl Warren: He would be.
George R. Georgieff: I don't mean to suggest --
Earl Warren: Yes.
George R. Georgieff: -- for instance, that the Court would interpret this statute to mean that the only thing on which he could have a jury trial was a question of his identity, no, sir.
Earl Warren: That's all I wanted to ask.
George R. Georgieff: No, sir. I need to say that anything which could be suggested is a valid defense would, of course, entitle him to it. As a matter of fact, the plea of not guilty would automatically give him that, unless he wished to put it in the bosom of the court as the trier of fact which, of course, here, he didn't do. But it's my position that, taking into consideration those things which most likely would be urged as a defense, and several of them were set out by petitioner in his reply to my brief, I can only conclude that with the narrow issue of identity, and our court has ruled that is a narrow issue in this circumstance, I don't believe that this man has been dealt with in a -- in a set of circumstances which resulted in anything that might not legitimately have come to him had we observed everything that he says we've failed to observer. I contend that the arraignment, the reading to him of the circumstances in which the Court found him, that is to say, that he did in 1922 or whenever it was, commit this, 1934 that is, then in 1956, the other one, and that he had served them. If he says he is the same man, the questions raised as to the validity of his search and so on, I think, are easily answered by the fact that the provisions for charging somebody under this set of circumstances clearly provide and contemplate that you shall have some means to arrest him and that you may proceed against him. Now, I don't -- I don't feel that with this narrow avenue, that what really has been done against this man, assuming that everything he says is so, and of course, we must, as I say, resulted in anything to him which he would not had even if the counsel had been present at that time to represent him in whatever measure he thought he was capable of producing for him.
William J. Brennan, Jr.: Mr. Georgieff --
George R. Georgieff: Yes.
William J. Brennan, Jr.: (Voice Overlap) about three months after he served the sentence, he was picked up and this happened.
George R. Georgieff: Within a day or two, yes, sir.
William J. Brennan, Jr.: Do you recognize any time in it all, after he'd completed the service of his sentence?
George R. Georgieff: Well, of course, my logic would be faulty if I said there were any limit.
William J. Brennan, Jr.: This might --
George R. Georgieff: I shouldn't make --
William J. Brennan, Jr.: -- this might actually then be years.
George R. Georgieff: To be sure, of course, it could, but then, so may many things. I don't mean to suggest to stand before you --
William J. Brennan, Jr.: No, but I gather --
George R. Georgieff: -- and say --
William J. Brennan, Jr.: -- I gather, even if it were years, you recognize no constitutional difficulty.
George R. Georgieff: Since there doesn't seem to be, let -- I can only answer that, Mr. Justice Brennan, by saying, let us assume that a man has committed two felonies, not only in foreign jurisdiction but foreign countries. And that a number of years transpire, and he becomes a problem in the community and it is discovered --
William J. Brennan, Jr.: Well, I'm speaking about this case, in this case with the very same court in which he had previously been convicted.
George R. Georgieff: It might be a little more hard put to justify if the span covered is substantial number of years.
William J. Brennan, Jr.: It's hard to justify on constitutional grounds.
George R. Georgieff: I think so. As a matter of fact, for whatever difference it may make, I have no objection to the coming legislatures. As a matter of fact, there's a bill pending before him presently to reduce the time within which they may proceed against someone to two years after the termination of the sentence in the second felony. Now, what's --
Charles E. Whittaker: Do you agree with -- do you agree, if I may ask, with Senator Pepper's conclusion that the power of the Court ended with the expiration of the term and the completion of the sentence served under that imposition?
George R. Georgieff: No, sir, I do not. I'll tell you why, sir. First, my illustration about the fine. Theoretically, when the fine is paid, again, the Court's jurisdiction ends, yet, we can't proceed against him because it's already over, if we adopt that reasoning. Furthermore, assuming my illustration of two convictions in a foreign jurisdiction and a foreign country, you might vest a court, having appropriate jurisdiction of those cases if they were felonies, with jurisdiction to impose the enhanced penalty. So, if you can get it to him when they never had it, I don't think that it's correct to say that by the simple passage of the sentence, that they have lost jurisdiction to re-impose and enhance one on a multiple offender.
William J. Brennan, Jr.: Yes, but in -- in this case, might that not be a state law question in this very case?
George R. Georgieff: I don't think I quite understand.
William J. Brennan, Jr.: Well, might that not still be something which the -- your Supreme Court might say is the way this statute is to be constituted, namely, that this Court had, in fact, in this circumstance, lost jurisdiction --
George R. Georgieff: (Voice Overlap) --
William J. Brennan, Jr.: -- under your own statute?
George R. Georgieff: No question, that the --
William J. Brennan, Jr.: That's not foreclosed, is it?
George R. Georgieff: No, no question, of course, it's not.
William J. Brennan, Jr.: Well, that --
George R. Georgieff: And they had to --
William J. Brennan, Jr.: -- a lawyer -- a lawyer might have been very useful to him to raise that question, is it not?
George R. Georgieff: Well, of course, he could have raised even that question. But as I say, I hope to require a backing away from that by my position on the question of the fine and the two foreign country convictions. Now, I would not hesitate to urge to my Supreme Court the illustration of the fine because I think it's proper and good, and I don't believe that if they could answer -- if they couldn't answer that, that they could, in good conscience, rule that you had to do it during the time the man was serving his sentence. And to that end, I say that it would not be available to them on that basis, using that as my argument, to say that you must do it within the time that he's serving his sentence or else you can't. Now, as I said, I don't know what success the pending bill will have when the legislature convenes, probably none. But in any case, it is a move on somebody's part, of course, to see that these things are drawn within a reasonable period of time. And I don't say, for one moment, that three months is, five years isn't, but of course, with each passage of -- with each period of time, the greater it gets, the more difficult it becomes to justify it simply because of that passage of time. But in this situation, of course, it was somewhat under three months, possibly by a few days, and I don't think that the activities against this man were such as would shock even your conscience considering the narrow avenues that might be involved here. Now, I don't pretend to be able to explain how many questions might be raised by counsel. I rather imagine that if we were to find a country lawyer somewhere, he might be limited in his scope, and I rather imagine that Mr. Williams, who is of some providence, would raise a hostel, but I don't think that it ought to be determined on the basis of what a good lawyer would raise as opposed to what a poor lawyer would. Just the question of whether, within the narrow scope confined in this avenue, that is to say, his identity plus the normal defenses that are available to anybody, that this man was dealt with unfairly, and I don't think that the granting as a petition for cert was provident in this case, and I think that the Court ought to receive from this position initially taken here and deny the cert granted.
Charles E. Whittaker: May I --
Felix Frankfurter: Are you saying -- are you saying, Mr. Georgieff, that the judge, in denying his request, made an estimate of the situation in which the prisoner found himself in?
George R. Georgieff: I must, of course, say that --
Felix Frankfurter: And -- and --
George R. Georgieff: -- or I cannot continue.
Felix Frankfurter: -- and that such an estimate was a justifiable estimate which didn't cut off any potential opportunities for the prisoner as against the inferences to be drawn of embarrassment to the administration of justice by granting this continuance.
Felix Frankfurter: That's what the case gets down to, does it?
George R. Georgieff: That is a capsule version. I would probably agree with. That's what it becomes and as I stated in my --
Felix Frankfurter: Well, what's lacking?
George R. Georgieff: I beg your pardon?
Felix Frankfurter: What isn't in the capsule?
George R. Georgieff: Well, let me go further and say that that is a narrowed down version that I won't argue with. I think that it becomes probably a question of just that. Now, I also stated in my brief, and I will repeat here, that this man has already, in his presentation to the Honorable Gunter Stephenson, who was circuit judge, secure credit for his time. Now, I don't take any --
Felix Frankfurter: He did what?
George R. Georgieff: He secured credit for the time on his second felony. Now, I don't -- I don't ask for any particular kudos on this. All I say is that he presented an issue without the benefit of counsel to a circuit judge which resulted in a substantial reduction at the time which he had to serve. Now, he was not ignorant, not by any means. He is not ignorant, not only then but not now. And, as I said before, depending upon the outcome of this proceeding, he will have achieved at least two victories out of three. Now, the only one in which he's failed so far is one before the Florida Supreme Court. And I submit that that does not demonstrate that he falls within that group of people who would have been so harmed by this as would require a reversal without anything further to say about it.
Felix Frankfurter: Well, we can't deal with a group of people here. We have a particular -- a case, isn't that it?
George R. Georgieff: I quite understand.
Felix Frankfurter: (Voice Overlap) of circumstances. This isn't the validity of a statute which is a net which involves -- which, in effect, is a net of such -- such type of composu -- composition that it sweeps within it, that it hauls up all sorts of thing. This is a particular, a particular record of the particular circumstances you say and therefore, judicial mind isn't -- shouldn't be invited to roam at large and think of all the fanciful possibilities that this prisoner may have been able to dredge up if he'd had Mr. Bennett Williams or his counterpart in -- in Florida. I mean, is that clear? I'm not saying that's the answer to the case. I'm stating a problem, not a result.
George R. Georgieff: I will agree that it is a considerable problem and you said it far better than I could serve. But at the same time, I find myself in the hopeless position of not being able to rely on a specific case because it, too, embraces a specific set of facts and yet, I can't urge a number of things as a deterrent to this Court's ruling if this man was dealt with unfairly because, again, this is a specific one, and I -- frankly, I don't know any way out of it.
Felix Frankfurter: What do you --
George R. Georgieff: I'm trying to think --
Felix Frankfurter: -- what do you say to the suggestion that -- that in light of the attitude of your Supreme Court in the later -- in the two later Cash cases, if this matter were remanded to that Court to be reexamined not only in the light of our pre-docket case but what they reveal to be the -- their view of the law, you might have a different result.
George R. Georgieff: Without doing --
Felix Frankfurter: I don't mean as a matter of -- I don't mean as a matter of mercy or grace, but they've now laid down in 100 cases. The Court said, at the property of this, they've -- they've laid down a new, call it what you will, a new attitude by which a new point of view, new consideration or consideration that's not heretofore applied to a situation not that similar and therefore, in a way -- he hasn't put it in those words but implicitly, in a way, what's his name, Reynolds is the victim of the unequal protection of the laws and that he came before them in 1959 instead of early in 1960.
George R. Georgieff: I'm begging the Justices' pardon. I wonder if I might decline to answer because an intelligent reply would offend either my Court or yourself, and I would --
Felix Frankfurter: Would be what?
George R. Georgieff: I say, an intelligent reply to that might offend either the Supreme Court of Florida or yourself and I don't want to do that.
Felix Frankfurter: Well, why? I don't understand that.
George R. Georgieff: Well, I can't --
Felix Frankfurter: It's a question of -- I haven't read the opinion and I -- I assume you have. If you say that --
George R. Georgieff: I have.
Felix Frankfurter: Pardon me?
George R. Georgieff: I have read them, yes.
Felix Frankfurter: Well, then, you're able to tell whether Senator Pepper has put too optimistic an interpretation on the later Cash cases. If you -- do you agree or disagree with his view of those cases?
George R. Georgieff: I do not think --
Felix Frankfurter: If --
George R. Georgieff: -- it is too optimistic, no.
Felix Frankfurter: Well, if that -- if -- if I may interpret that more pointedly by saying you think if judge -- that judge by those cases, they would have been -- he was entitled to have a lawyer.
George R. Georgieff: It is possible that they would, Your Honor.
Felix Frankfurter: Well, then, aren't you saying, in effect, that under the law, as we now have it declared by the highest court of Florida, a situation has arisen which makes a change in the outcome which may reasonably have made a -- may reasonably make a change if the case was sent back in the outcome of the case and therefore, there comes into play a well-known doctrine that an intervening event may change the course of the litigation.
George R. Georgieff: I admit that as a very real possibility. I couldn't presume to say what the Court would do of course.
Felix Frankfurter: No, no, no, that's -- that's --
George R. Georgieff: And that is the only reason that I made the remark which I did prior to it.
Felix Frankfurter: Well, you answered --
George R. Georgieff: I anticipate that it's a very real possibility of course. I couldn't deny what they've written in these two cases. That would be foolish --
Felix Frankfurter: Nor can you --
George R. Georgieff: -- in the two Cash versus Culvert cases.
Felix Frankfurter: No, anybody -- that's imprint.
George R. Georgieff: I read it quickly and thoroughly and I'm well acquainted with it and as a matter of fact, I felt err to Elijah McNeal which will probably result in something similar to it. So, I can only say that --
Felix Frankfurter: If you --
George R. Georgieff: -- an educated guess would probably produce a yes reply to your question.
Felix Frankfurter: Well, I didn't mean to elicit a prophecy from your argument.
George R. Georgieff: Yes.
Felix Frankfurter: You've given the answers that seem to me vital to a judgment, namely, whether it is true, as a matter of fair interpretation of the latest pronouncement of the Supreme Court of Florida, that their pronouncements which, as it were, if acted upon this case, undercut the -- the unexpressed, inarticulate basis of this decision.
George R. Georgieff: I think that would be fair.
Earl Warren: This -- this man is in jail and he's been in jail a long time, and he's properly here before this Court, don't you believe that, in view of those circumstances, he's entitled to a judgment of this Court without remanding it back to the Supreme Court of Florida for him to wait in jail maybe another year or two before he can have his case judged by this Court?
George R. Georgieff: No, sir, I don't.
Earl Warren: You think that's equitable to do that?
George R. Georgieff: You ask me did I think that he was entitled to a judgment of this Court rather than requiring that you send it back.
Earl Warren: Yes.
George R. Georgieff: I said I did not think so. Was that your question, Mr. Chief Justice?
Earl Warren: Yes.
George R. Georgieff: And, I said I did not think he was entitled to that without it being sent back because I'm satisfied that the ultimate disposition of this case will reveal that these circumstances are not as represented.
Earl Warren: And therefore, he is not entitled to a hearing?
George R. Georgieff: He is entitled to a hearing. I thought, Your Honor -- I beg your pardon. I equated your question with a pronouncement that your -- your disposition would result in his immediate discharge.
Earl Warren: Well, I hadn't made any such --
George R. Georgieff: No. Well, I mean--
Earl Warren: -- suggestion. I was talking about what he is here before us and properly here before us, and -- and is he -- is he not entitled to whatever judgment he's entitled to under the facts.
George R. Georgieff: Unless that would preclude a showing that what his allegations portend is not true, then I say, of course, he is. Now, if you would preclude a showing that what he contends is not so, then I'd say, by all means, no.
Felix Frankfurter: Are you --
Earl Warren: No, go ahead.
George R. Georgieff: In other words, if I -- if I may go back to Elijah McNeal --
Earl Warren: Well, I'm a little confused because we're dealing with parables about what the -- what the Court will do and what it won't do and what it might do and so forth. I -- I get confused on it.I just wonder if this man isn't properly here before this Court and entitled to the judgment of this Court, whatever that -- whatever that might be, based upon the merits of his -- his case here today.
George R. Georgieff: Well, again, sir, I am put in the almost hopeless position of not having anything to urge in defense to his allegations. I don't plead that as a defense but, nevertheless, it is a fact that I can't avoid.
Earl Warren: Well, that's why he's here.
George R. Georgieff: Yes, to be sure, because of the denial without request for return, etcetera, or a hearing. Now, in effect, all I will say is that whatever disposition you make of it, I think that in fairness to the State of Florida, we should be allowed to show that this man is or is not telling the truth in his petition.
Earl Warren: Yes, but your -- the major portion of your argument was that he wasn't entitled to any relief.
George R. Georgieff: Well, I must say --
Earl Warren: But he wasn't even entitled to go back that -- then have a hearing now. You can (Inaudible) and keep it.
George R. Georgieff: I did not quite allege that he was not entitled to it. I said, even if he wasn't given this, did he receive due process.
Earl Warren: Well, I understood you to say that he got everything in that Court that he was entitled to, that a lawyer couldn't have done him any good and that, therefore, he wasn't entitled to any remedy at our hands. Maybe I -- maybe I didn't quite understand you.
George R. Georgieff: Now, if I said that, Mr. Chief Justice, and I don't -- I don't have the time right now to go through it word for word --
Earl Warren: No, no, I don't want --
George R. Georgieff: -- and see --
Earl Warren: -- I don't want to argue with you of course.
George R. Georgieff: But do let me -- do let me say that my position very simply is, if this Court sees fit to grant this man some measure of relief or whatever measure of relief you think which he's entitled, I think that it would be unfair to allow this -- rather, to deny to the State of Florida the right to show that this man possibly may be lying about what he said. In other words, let's assume that he did not make this pronouncement to the trial court. Let's further assume that no denial was ever affected.Let's further assume that he never hired a lawyer or something like that. I don't know but what that's so or that it is, but if that is possible determination, I think that, probably, we ought to have a right to make that -- make that determination in a hearing.
Earl Warren: Well, do you contend that he is entitled to no relief. Now, I look at your conclusion of your brief and you say "Wherefore it appears almost conclusively that no rights assured petitioner by either federal or Florida law were denied him the proceedings about which petitioner complains did no violence to his liberty, which has not been recognized as valid and lawful in every pertinent way. It follows that the certiorari should, therefore, be denied." Now, is that your present position? Do you believe we should deny this writ or -- or do you believe he's entitled to some relief and if so, what?
George R. Georgieff: I think he is entitled to some relief, Your Honor.
Earl Warren: What relief would you think?
George R. Georgieff: I think -- I think he is entitled to have a determination of the factual allegations that he made in his petition before the Florida Supreme Court in order to ascertain whether there is enough to them to put that Court in a position of requiring that testimony be taken to establish whether, in fact, these things occurred and if they did, as he suggests, then I'm satisfied that the Court will rule as you would if you had it.
Charles E. Whittaker: Well, is that --
Earl Warren: In other words, your position is that he's entitled to the hearing that was denied him by the Florida courts.
George R. Georgieff: Preceded by a return, yes, sir.
Charles E. Whittaker: Which is the relief that was granted both in the Cash and in the McNeal cases, isn't it?
George R. Georgieff: Precisely. Of course, we have not yet held a hearing in the McNeal case. Mr. Daniels and myself --
Charles E. Whittaker: No, but that's the relief that this Court granted --
George R. Georgieff: That is correct.
Charles E. Whittaker: -- in both of the cases, isn't it?
George R. Georgieff: That is correct. And I was about to enter into that by analogy.
Earl Warren: Yes.
George R. Georgieff: And it's my position that that is the relief to which he is entitled. And we would, of course, respectfully suggest that the Court, if it elects, to find in that vein that that'd be the disposition made of it today. Thank you.
Earl Warren: Thank you.
Claude Pepper: Your Honor, I think --
Earl Warren: Mr. Pepper.
Claude Pepper: -- there's only a word or two more that -- that I've been asked. One of the reasons that I brought up, and I think I have about six or seven minutes, Your Honor, I don't want to exceed.
Earl Warren: No, no, you have -- you have time.
Claude Pepper: Oh, thank you.
Earl Warren: You go right ahead.
Claude Pepper: Thank you. One of the reasons I brought up this question about due process in a case where the defendant had completed the service of his previous sentence was that if the record should show those facts here, and I suppose there's no dispute whatever about the man having completed the service of the sentence for which he was charged, that is, the grand larceny charge. Now, if under these facts, there wouldn't be any justification for charging this man again. Well, then it would seem to be rather useless to go all the way even to the Supreme Court and let alone, to back to the Court of -- Criminal Court of Record of Polk County for -- for the decision of this matter again because that's not, so far as I assume, a factual issue. I don't think the State would dispute the fact that the man had already completed his service of the grand larceny sentence. Now, if that type, being assumed, would make it a violation of due process to apprehend him again after the completion of that sentence, then I thought that matter might well be within the scope of the consideration of this matter by this Honorable Court. On the other points, Your Honor, this Court said through the able Chief Justice in the Fretag case, of course, regardless of whether petitioner would have been entitled to the appointment of counsel, his right to be heard through his own counsel was unqualified. And I rather input from the brief of the State as the Chief Justice did, that the -- the State was taking the position that because there wasn't any effective defense that an attorney could have presented in the Court that sentenced this man under the habitual offender statute that, therefore, he had suffered no harm, and there wasn't any -- anything that -- that need be done for him here. I would simply say, in my reference to the -- to the two Cash decisions of the Supreme Court of Florida after the -- the Cash-Culvert decision by this Honorable Court. Why did that Court, evidently having ignored the principle of Cash versus Culvert decided by this Court in this case, September the 15th, 1959, five months after the Cash-Culvert decision by this case, in another case and where counsel were present and where a due consideration was given to the matter, had now affirmed the principle of Cash versus Culvert and of -- and of Chandler versus Fretag as the doctrines of the Supreme Court of Florida which they will apply. But I didn't mean, in any manner, to suggest that the -- that this man should be left to the speculation by this Court of what the Supreme Court of Florida might decide because the -- the Cash-Fre -- the Cash-Culvert case had already been decided by this Court and in the -- in the books, four or five months prior to the time the Supreme Court of Florida denied this petition, presumably in the light of those second and third of that -- second and third Cash cases, they would so hold but, certainly, as the Chief Justice had intimated, this case is before this Honorable Court. And I would take it, if the principle is right that due process was denied by the denial of counsel, that it would be proper to -- to grant this certiorari so that the Supreme Court of Florida will do what it did in -- under the Cash versus Culvert decision of this Court, say that it was under the mandate of this Court to issue the writ of habeas corpus. I add only, in respect to the question of Mr. Justice Whittaker, that the statute, in respect to the man's saying that he was the same person as convicted under the previous conviction, the statute says, “If the jury finds that he is the same person or if he acknowledges or confesses in open court after being duly cautioned as to his rights, that he is the same person.” And the record of this judgment is silent here as to his being informed about any right that he possessed, let alone the right to a jury, the right to question whether the identity existed or not or any other point that may -- that may have been raised.
Felix Frankfurter: I gather from --
Claude Pepper: And the last --
Felix Frankfurter: I beg your pardon, go on.
Claude Pepper: I'm sorry, sir.
Felix Frankfurter: I gather from you that you think the Florida Supreme Court finds a mandate from this Court helpful.
Claude Pepper: I -- I find it so. And the -- but the defendant finds it particularly so, Your Honor. They -- I'll end it only this last thing and that is that we, in our brief, did attempt to set out the -- the various points other than those that have been mentioned here, that counsel could have brought up. Of course, it's an unqualified right to have your own counsel if you can afford it. But nevertheless, we pointed out a number of -- of things that an attorney could have done. Mr. Justice Douglas called attention to some and other of the Justices or the Chief Justice had called attention to others. We could well have contended -- any competent lawyer would have contended to the Court that in the light of the Nelson case and the Milan case, that the Florida Supreme Court had never determined whether or not their statute was intended to apply to a case where the last sentence had already been served. That could well have been argued and should have been considered and passed upon by the Supreme Court of Florida. The constitutionality that I -- I would have had much to have said in reply to what counsel for the States had amended ago, that under our statute, only one subject under our constitution in regard to legislation, only one subject can be dealt within a statute and that subject has to be clearly expressed in the title. And here, in view of the law of Florida, that once the court's term had expired or once the defendant had entered upon the service of the sentence, the court then lost jurisdiction. It's grievously doubtful as to whether or not a legislator would have been informed in passing upon this habitual offender statute that it meant to create new jurisdiction in courts not only after the term had expired or after the man had begun the service of his sentence, but it meant to give the court jurisdiction for an indefinite time after he had completed the service of his sentence. I can well imagine that legislators might have had entirely different opinions about that aspect of the matter of which they had no advice in the title of the statute if they were entitled to have under the provisions of our constitution. I could multiply instances, of course, if I knew my time.
Potter Stewart: Senator Pepper, is there anything -- just as a matter of curiosity, more than anything else, is there anything in this record to indicate what it was that motivated the apprehension of this man on this second offender --
Claude Pepper: No, Your Honor.
Potter Stewart: (Voice Overlap) --
Claude Pepper: The record is silent. It merely says that -- that the -- he -- he got out about the 1st of December and then on -- the record shows then that on the 13th, the county solicitor filed this information and while I don't see it in there, counsel has stated in his brief that on the back side of it, it appears that on the 15th, it was served. And the record then shows that on the 18th, the -- the defendant was picked up by this pickup order which wasn't a warrant, and that's another point that we've called attention to in our brief.
Potter Stewart: (Voice Overlap) --
Claude Pepper: It's whether he was properly picked up or apprehended under our law. But it just shows that he was apprehended under this pickup order to be carried down there to the -- to the Court. And there's no -- there's no -- nothing to explain why they waited more than two years to discover a conviction that have been rendered in this very Court against --
Potter Stewart: Is this an unusual kind of a happenstance (Voice Overlap) --
Claude Pepper: Well, it would seem to me so. And by the way, this man, in his petition, refers to the case of Patch versus State. I believe it is Patch versus, I think, it's State or Patch versus (Inaudible). They tell me that down at the state prison, they have what they call a prisoner's library when they passed around these pleadings. That's the reason sometimes, in a -- in the petition of a man like this, you will find some good phrasing then you will find him saying some things that are utterly ungrammatical at all. I suspect that maybe, possibly, he copied something that he picked up, and I don't think it shows you that this man was an able man, so far as that's concerned or -- or an informed man. But nevertheless, in that Patch case, the Florida Supreme Court considered the practice that has prevailed by the courts of Florida for quite a long while and condemn the practice and -- and require the -- the determination of the practice, that is, that after a man was convicted, the Court would just indefinitely withhold sentence and sometimes that withholding went on for years. A man would be subject any time to be brought back and -- and sent to prison under a sentence he'd been convicted by a jury, let's say, but instead of a sentence being imposed within a reasonable time, the Court would just put him on probation, as it were, by just not imposing a sentence, by holding it in the bosom of the Court. Well, now, the Florida Supreme Court pointed out that -- and this man said, “Does a man never to know in substance when he's subject to be called back and incarcerated in prison as it were? Does he have no certainty about his liberty and that sort of thing?” So, the Florida Supreme Court laid down a principle which I think might, under due process, apply to the length of time in which these charges of being a habitual offender might be presented. The Court said unless there's some real justifiable reason for the Court withholding the imposition of a sentence, like a motion for a new trial or a motion and a rest of judgment or for some other reason, it would be a normal as -- just as indicated this morning in another case. Should -- should we hold it for this reason or there's some real justifiable reason. Why, it's a duty of the Court to impose whatever sentence he's going to impose, give the man a right of appeal. You can't appeal from a sentence that's never been imposed. You've got to have a final judgment before you can appeal. Give the man a chance to appeal or to move for a new trial or rest of judgment or something like that. And then, if you're going to give him probation, give him probation. Then, you know what the man's rights are. And so -- so the Court laid down the principle that even dealing with courts, you ought to act promptly with the -- with the -- promptly or there's got to be some reason, and I say the same thing should apply to these cases. The order -- the state order act promptly or there ought to be some justifiable reason or under facts like this, it's not due process of law. Thank you.
Earl Warren: Senator Pepper, on -- on behalf of the Court, I would like to express our appreciation to you for the very vigorous manner in which you have defended the rights of this indigent person. We're always comforted when lawyers like yourself are willing to take assignments of this -- of this kind, and we do thank you.
Claude Pepper: Thank you, Your Honor.
Earl Warren: Mr. Georgieff --
Claude Pepper: It was a privilege to serve (Voice Overlap) --
Earl Warren: -- I want to say to you, sir, that we likewise appreciate the frank and able and diligent manner in which you have represented the interest of your State.
George R. Georgieff: Thank you, Mr. Chief Justice.
Earl Warren: You have given us a good presentation of the case, both of you.


Earl Warren: 99, 100, 101, 102, 105, 117, 181, 261, 262, 266, 388. Mr. Gilliam.
Carroll L. Gilliam: Mr. Chief Justice, may it please the Court. In view of the event yesterday, I would like to ask the Court's indulgence briefly on a personal note because I have received many expressions of concerns from the offices of the Court and counsel in the case. I am assured on confident medical advice that the problem is a sinus congestion and not having availed myself of proper dining for the past two or three days, there is no impediment whatsoever to our continuing under the normal rules of the game. I would hope as Mark Twain once stated it that the trade press would note that the news of yesterday was greatly exaggerated. So with that note I would state I appreciate the indulgence of the Court.
Earl Warren: Mr. Gilliam, you were arguing yesterday and has made it through (Inaudible).
Carroll L. Gilliam: Thank you.
Earl Warren: I think you might -- (Inaudible) can be happy to service this privilege to continue (Inaudible) of your argument.
Carroll L. Gilliam: Thank you Your Honor. Yesterday at the point of the unfunny event in this forum, Mr. Justice Fortas had propounded a series of questions that go to the attempt to find a post revenue balance on the basis of the Commission's decision in the case. Mr. Justice White had propounded a series of questions dealing with the quality treatment deduction cost. I would state that the answers to those two series of questions actually cannot be made on the face of the Commission decision or its opinion on rehearing. The difficulty that I believe the Court is having and that all counsel are having in discussing those two questions is precisely what was found by the Court of Appeals. In a normal rate case whether it is individual company or a group rate case, the agency makes findings as to the cost that he is going to allow in the rate and findings as to the rates it is allowing. We then proceed if there are judicial review questions that these questions are weld if they leave out a cost or did they not. There's one side of the other thing, a cost allowed was generous or not generous is the rate of return high or low under the Hope test. The problem we have in this case is precisely what was said by the Court of Appeals in order for that Court or this Court to address itself to those questions, there are certain limited gaps in the Commission's findings in this case. Now, to go to Mr. Justice Fortas' problem with this revenue costs balance. We had the 14.5 cents cost of flowing gas. That is a cost finding by the Commission. It is based on a number of underlying subsidiary findings as to each of the cost involved. The Court of Appeals did not disturb that. We are not attacking that. To apply the Hope test however, you have to compare that figure with what is the average revenue under the prescribed rates. Unfortunately, in this case in order to know what the prescribed rates are we need to know what is shown by this evidence of pipeline cost that would have to be used to arrive at the prescribed rates. What the resultant rates are? Make some multiplications by the volume sold and we would come out with an average revenue figure. Which figure should be the one that Mr. Justice Fortas was seeking to compare with this 14.5 cent figure? Now yesterday, we had talked about the 12.72 cent figure but that is the average revenue in 1960 at all of the contracts and rates then in effect that includes these 18 cent rates. It include the whole spectrum of the 3 cent rates and everything in between and it averaged 12.72. Now under the prescribed rates, we know a number of things. We know first of all that all of them in that batch that were above 14.5 cents are reduced first to the 14.5 cent level. Then on the rates for the 90% of the gas involved in this case which is not eligible for the pipeline quality rate, the prescribed rates are lower so that as we review the case and if you accept some of these estimates of how much is this pipeline quality subtraction the average revenue under the prescribed rates will be lower than the 12.72 cent figure that existed in 1960.
Abe Fortas: That's where I have my trouble.
Carroll L. Gilliam: I think --
Abe Fortas: Because the figure that was given to us was 1. -- I think it was a maximum rate -- of the range of 1.7 cents deduction for this pipeline cost due to the lower quality of the gas. And if you'd deduct that from 14.5 cents, you're still above 12.72. Now, my method of -- my approach to this must be wrong when you wouldn't be making this argument. What I am asking you to do is to tell me where and how?
Carroll L. Gilliam: You Honor that is most critical. But just as we had to do before the Court of Appeals and as I would have to do, and as much as Solomon would have to do when he's follows me to answer that question. I have to go outside of this record and talk about these materials as to pipeline cost which the Commission of course has now but they are not in the record before this Court.
Byron R. White: But Mr. Gilliam --
Carroll L. Gilliam: I can answer the question if I -- on estimate. And I think Mr. Justice White it's the same type of estimate that you asked me about yesterday. If you accept a lower figure that I believe the Commission has in it's brief now lower than 1.7, at one point in their brief here, they say that on examining the statements they have, if the range would be between one and 2 cents and in another place they say something like 1.1 to one category of gas and (Voice Overlap) --
Byron R. White: Oh, at page 34 of your brief, it says -- they say that the Permian Gas (Inaudible) that page that the turning gas (Inaudible) in a range of 0.7 to point -- to 1.5 --
Carroll L. Gilliam: Alright.
Byron R. White: And they say, and the Commission found?
Carroll L. Gilliam: The Commission found --
Byron R. White: What was wrong and if there's any (Inaudible)?
Carroll L. Gilliam: Recommend -- I don't think there is one but Mr. Solomon make the supply you want. The Commission did make a finding that included the 1.7 figure that Mr. Justice Fortas mentioned. It did not make specific findings on this pipeline quality material which I think maybe the source of a material before you. The estimates that the Commission made were not based upon the pipeline cost data at all. They were based upon what we considered totally unrelated evidence as to producer cost and the provisions in existing contracts that are addressed to this quality differential. Well, they rejected this contract approached as Mr. Merrill covered yesterday. But let me get back to Mr. Justice Fortas' question and I think Mr. Justice White if we take -- let's take the 1.5 cent figure instead of 1.7.
Speaker: (Inaudible)
Carroll L. Gilliam: No. Just assume that it is 1.5. The subtraction that you have to make in applying this designed rate here is not from the 14.5 cent cost figure. That is a Commission finding on producer cost only of a revenue requirement. When you design rates the subtraction is made over on the revenue side not the cost side. You don't subtract -- let's say this, the 14.5 cents for purposes of my argument, is the average cost. Now, the Commission has found that it does that on cost of service methods in every case, in every regulatory agency that uses this method makes that finding that that's the product of a cost to service, an average cost --
Abe Fortas: No. But that also --
Carroll L. Gilliam: Now --
Abe Fortas: -- includes a return.
Carroll L. Gilliam: It includes a return and I hope to get that. But I want to emphasize that this 1.5 cents is not subtracted from the cost that have to be compared. It is subtracted from the rates that are prescribed. The maximum pipeline quality gets the 14.5 cents in revenue, so you have a cost revenue balance assuming that. But on the other 90% of the gas you have to make the subtractions which, let assume, the average 1.5. You subtract that, you come down to what the revenue is for that 90% of the gas involved in this case.
Abe Fortas: So what you're saying --
Carroll L. Gilliam: Now --
Abe Fortas: What you're say in this -- what you're saying Mr. Gillian depends upon going from the group average basis to the individual basis --
Carroll L. Gilliam: No.
Abe Fortas: -- and I guess, I'd have to agree with you that when you start engaging in that and the whole thing is a mess.
Carroll L. Gilliam: No. Your Honor, we -- we're like the Court of Appeals. We believed that with these corrections the area rate method is not a mess, it can be made a viable, workable, regulatory method. But I'm not talking about individual company figures in any of my discussion this morning. I'm talking about the aggregate. This is most unlike the questions this Court had in the Chicago v. Atchison case last term. I'm not talking about individual company findings. I'm talking about the aggregate cost filed on this composite industry basis and the aggregate industry revenue.
William J. Brennan, Jr.: And it's the latter which you say is missing?
Carroll L. Gilliam: It is the latter that we don't have the necessary findings to make this clear in the Court of Appeals or here.
Abe Fortas: How could you have findings on that? What the Commission is doing in effect is saying that people who have this point made contacts for gas. And more of them 14.5 just as you've said roughly have to and -- have to or reduce a future contract to that point. People have made contracts at lower figure and if the marketplace permits to make contracts at a higher figure than their previous contract price up to 14.5. Well now, actually on the basis of experience as I understand this, the industry revenues may not be 14.5, they're maybe less than that rate by considerable amount, that's your point, isn't it?
Carroll L. Gilliam: It -- they can be under given set of facts and the test year and it could happen in this case from 1960. But that has very great legal significance in rate regulations. If the combination of all of these contracts produced an average revenue that is below the average revenue requirement, it means that you can't say that the rates, the totality of revenue is unjust and unreasonable. Now, that doesn't mean that the Commission is closed from looking at the spectrum and saying that this is discriminatory and so on. But that the first step in a rate case before you start to design the rates to be placed in effect is this cost revenue balance. Now, once you make that and if the Commission filed as it could find in any case, yes, the industry revenue is excessive. What is the next step? It is to design a structural rates and even in this case, there's no single uniform rate. The Commission has designed a structure of differing rates. But Mr. Justice Fortas when they imposed it, it automatically sets aside the contract prices and this is imposed in lieu of that but it still as we see the majority opinion in Hope and as the Court of Appeals concluded. It means that even under the group method the revenue -- the average revenue under that spectrum of rates should at least be such that the industry has the opportunity and I emphasize opportunity because this doesn't guarantee anything, its opportunity, to earn the average cost. Its average revenue, average cost. Now, on -- included as Your Honor said is this 12% rate of return. That is a piece that makes up the 14.5 cent cost. It is significant in this case because the Commission says, “Well, even though you may not have gotten a balance, you certainly didn't get the 14.5 cent cost, therefore you didn't get the 14 -- the 12% return but that was kind of generous, so what?” To apply the Hope test and for a Court to review a rate case it is not reviewing a hypothetical 12% return or something else. The Court has to know what is the return that was allowed, right? Doesn't make any difference. If I stand up here and tell you that the 12% is too low and somebody else says it's too high, if that isn't what is allowed in this rate, what difference does it make out? There's no point in wasting the time of the Court. What we should be talking about is the 12 -- it is not the 12% but what was the return allowed in the rates prescribed? Now, the 12 may sound high but there's a significant reason for that and it has to do with the difference in the equity debt ratio in the producing industry with ordinary utilities. The Court's were accustomed to hearing 6% and times passed and that seems to be the sacrosanct magic number. But just as a hypothetical example, in pipelines and in most utilities the equity is usually only about 15% of the total capital. The rest of the total capital is debt but at least until times recently the companies that get is 4.5% or something along that line 4.5 to 5. It certainly is not possible today. But assume that in my example when they allow 6% on the total capitalization, it means that the equity gets 9 to 10% and on page 144 of the Commission's brief they correctly state that, “in recent pipeline cases, they have allowed and this is based on evidence about the market cost money and so forth. Rates of return that permitted pipeline equity that earn 10 to 12% on the equity.” Now, let me shift from that to the producer situation. The Commission made finding at the finding in the rate of return part of its opinion that an equity investment in a producing company is far riskier than this pipeline equity investment. And I don't think there is any party to the case and that would include the Commission staff who disagrees with that. It is a well-known fact that it is one of the riskiest investments that anyone could make. And this brings me right back to one of the reasons that the producers have an 85% equity, it's this simple, you can't finance the bulk of exploration by going to a bank and conservative institutions. It has to be done with equity money. And that it has to be primarily generated internally through the rates collected. But let me get to the mathematics of this 12% return. The Commission in its brief has these numbers that Mr. Justice White pointed out. If you apply that both in this case the effect of it is to reduce this 12% to something on the order of 9.5 or 9 or 10 or somewhere in there. But what that does to the producer equity in this case, if that is correct, is to reduce the allowed return to the producer equity below that or certainly no higher than that, that the Commission is allowing on the pipeline case equity and other cases. And yet in the rate or return part of this decision there is finding at the finding that the producer equity is riskier. Now, of course no one asked this Court or any other court to pick 12, 9, 10 or anything. What the Court of Appeals said is that the cost of this pipeline quality thing, first of all there is the procedural error, it isn't in the record, we can't quantify in the Court. It does have the effect of reducing this cost revenue balance. It obviously has this effect on the allow of return. We can't fill those gaps or speculate. It is a function of the Commission to make the additional findings. Now, just briefly, this limited remand somebody said yesterday that it could take forever. It is not under the Court of Appeals opinion and it would be true under any limited remand. By this Court it would be in accordance with the Court's opinion. It is a practical matter would contemplate getting into this record. These pipeline quality and cost data that they have and adjusting the findings. And I think in the essence that was what the Court of Appeals was asking. They certainly have not discarded this record. Thank you Your Honors.
Earl Warren: Mr. Solomon.
Richard A. Solomon: May it please the Court. First, let me take care of couple of minor matters. There were some statement yesterday by Texas and New Mexico that we had excluded the evidence they submitted. The Attorney Generals were in error there. We did not exclude the evidence. In fact, some of the evidence is in the joint appendix here, extracts from it. It was admitted into the record and was considered. We did reach the results that they wanted but there's no exclusion problem involved. Now, let me take up the problem which I did not take up in my initial argument which was raised by counsel for Bass yesterday and that is the argument that the Commission ignored some very substantial expenses which are born by the plant sellers, the producers who purchase on -- normally on percentage contracts from producers in the field gathered, process and then sell at the tailgate of the plant and the argument made yesterday was -- that it was outrageous with the Commission to fix a price for gas at the tailgate of a plant after gathering and processing which was the same as the price of fixed for gas-well gas in the field. Now, obviously whether the Commission has properly or improperly decided every issue here, it isn't foolish and it didn't overlook this very major problem. Their estimates can be made many ways but probably as much time was spent on cost of gasoline plants, so-called gasoline plants in this record as any other. That the examiner discusses this matter in great detail in his opinion at pages 226 to 231, where he explains why despite all these costing, he thinks it make sense to price it on a value basis which after all is exactly what's happening in this industry. They have in fact sold at the same prices roughly as the price of the pipelines play at the well head for gas-well gas. And at pages 328 to 341, if you want to go through a very interesting exercise, he goes into great depths on the costing. Because both the Commission and the examiner in coming to the eventual conclusion that an exact cost involves just too many allocations to be exact. I've done so only in the light of a recognition that they were not by so doing giving too little for these various expenses. And let me briefly read you what the Commission said in response to Bass' arguments or with similar argument very point on rehearing and I'm reading from 1116 (d) of the record. They say, "It has been stated in the applications for rehearing of several producer respondents that the price of residue gas, derived from casinghead gas should be fixed at a higher price because the record would contain evidence which would establish this cost for the level above the 14.5 cents per Mcf based on gas well it cost". The record does not support this argument. On the contrary, well a precise cost computation of residue gas cannot be made with sufficient assurance of accuracy sure was a basis for fixing prices. The evidence demonstrates the cost of residue gas is lower than the cost of flowing gas-well gas. It reflects in the evidence and then they go on to discuss certain evidentiary matters which had been raised and which they disagree with. Now this is not at all the picture that you got yesterday. I don't want to go into this further. We've discussed it pages 157 to 159 of our brief. Briefly, let me refer to another argument made by counsel for Bass yesterday. This was the procedural argument with respect to equality. That equality wasn't in this case. Very difficult point it seems to us because we can't quite see how you could have an area case where you don't consider quality. What -- in general let me refer you here if I may to pages 154 to 155 of our brief and particularly to the statement why the producers when they try to tie a rule making proceeding on quality to the Permian Basin decision, what they said was not that it was in the Permian Basin case but they said was and I'm quoting from there -- to my brief and this is a quote, “The producers in the Permian Basin proceeding have introduced evidence regarding quality standards in price differentials and planned to introduced additional evidence on such points when appropriate”. Now, what the Commission did was to say that it wasn't going to in the light of those statements try a general quality thing into this proceeding that nobody thought up until much later the quality wasn't an issue. Now Justice Fortas, I'm sorry to say that I agree with the counsel for Socony that it is not only useful from the standpoint of -- I think the entire industry for this Court to decide the moratorium issue but that -- this moratorium issue is not moot. The technical reason for moratorium issue is not moot is because moratorium in a state, we haven't been able when people filed increase which would have been subject to the moratorium to not let them go into effect. But we have assumed that the Court stay on the moratorium like everything else were subject to the final action of that Court and this Court. And the Commission has consisted with in allowing these increases to go into effect and they're clear that they were going into effect subject to the final outcome of this case. So, there's considerable amount of money which means that the problem is not moot. And for the reasons that I went in --
Byron R. White: So it's all in the refunds, Mr. Solomon?
Richard A. Solomon: What?
Byron R. White: If your -- if the Commission's moratorium order is upheld this would result in a refund.
Richard A. Solomon: It would result in refunds for those producers who pursuant to the stay --
Byron R. White: Stay (Inaudible)
Richard A. Solomon: -- and filed increases --
Byron R. White: Filed increase (Voice Overlap) --
Richard A. Solomon: -- which wouldn't have been (Voice Overlap). That's what --
Byron R. White: Yes.
Richard A. Solomon: That exactly. I'll give you something back. There was one argument here which we don't. I won't go any great length. That is the argument about the last “clean rate” problem. I wouldn't even attempt to describe it. It was mentioned in some of the briefs. It was mentioned by counsel for Mobil yesterday. I don't -- they want to decide it in May but the fact is on this one, the Commission expressly refrained from deciding it. It has not been decided by the Commission. At the time of the Commission's decision it wasn't clear whether it was a real problem or not and we said we'd handle it when we got it. So, this is not something which is the part of the Commission decision. Now, briefly on the problem that Mr. Gilliam was speaking this morning, speaking to this morning. I want to make perfectly clear Justice White that there is a finding. The finding is that 1115 (d) of the record and what the finding is there's a longer paragraph on the matter. It says, with the charges -- changes we have made with respect to quality standards, the average adjustments for gas-well gas will range from 0.7 to 1.5 reduced by the additional revenue for plant liquids and the effect of the BTU adjustment. There is evidence upon that -- which that is based on -- it is evidenced which Mr. Gilliam doesn't think is good evidence. This evidence we think is clearly good enough evidence as well as the exporter. And the evidentiary references, I will not labor the Court with but they are cited in our brief in the Footnote 15 at pages 142 to 143 of our brief. Finally, like my client put back on the track what I think Mr. Gilliam's argument comes down to. I don't think once we get out of this morass of quality that this is a real problem. There is a real problem. What they are really saying, they phrased it, what Mr. Gilliam did this morning, in terms of letting us have the opportunity to earn this cost based standard price. But what this really boils down to is saying, set your rates to guarantee that the -- we will earn these revenues despite the fact that we have on a number of our sales previously contracted to charge less. And that is what the problem is really all about on the so-called revenue deficiency argument and I think or as I know this is something that I hope I explain in some detail on Tuesday. Oh, may I say one more word sir?
Earl Warren: Yes you may, resume.
Richard A. Solomon: As lack of material in the briefs on some of the costing matters which I haven't had an opportunity to get to. We are asking as I said at the very beginning that the Court affirmed the Commission on all of the case. We hope that our brief has taken care of the matter and we certainly hope that the result of this case would be a full affirmation of the Commission decision. So, we can proceed with the difficult task of finishing up this area rate making process.