Earl Warren: Number 580, George Samuels and others against Mackell, District Attorney and others. Fred Fernandez, appellant against Thomas J. Mackell, District Attorney, Number 813.
Victor Rabinowitz: May it please the Court.
Earl Warren: Mr. Rabinowitz.
Victor Rabinowitz: This is in appeal from a judgment of the three-judge statutory court sitting in the Southern District of New York denying two plaintiffs an injunction and declaratory judgment against the District Attorney of Queens County. The plaintiffs sought an injunction and declaratory judgment to enjoin their prosecution under the New York criminal anarchy statute. The facts, the relevant facts I think can be very briefly stated. On June 21, 1967, the 11 plaintiffs here were indicted together with a number of others, on charges of advocacy of criminal anarchy conspiracy to commit the crime of advocacy of criminal anarchy. Two of them were also charged with permitting there premises to be used for an assemblage of anarchists. The indictment was considerably broader than this in that it had 48 counts of which only five come -- five are before the Court on this application. The other 43 counts all related to specific crimes, most of them to the possession of guns. Contrary to the law of the State of New York, I think there's also a charge one of the counts relates to a conspiracy to commit the crime of arson. This case, the indictment here invoked the New York criminal anarchy statute of 1902, which was first applied in the period after the First World War of the early 20's in the Gitlow case. And was not applied again until 1964 when it was applied by New York State in the case of People against Epton. This resurrection of a moribund statute in the Epton case and the mass indictment in this case which followed 36 days after, the Court of Appeals decision in Epton poses a threat, we think, to the radical political activity of our time and raises memories of the 20's and the prosecutions of those errors which clearly seem to us to be inconsistent with modern constitutional doctrine. The plaintiffs brought this action and rely largely on the general authority of this Court in cases such as Dombrowski and cases which have followed it, and so far as declaratory judgment is concerned, in Zwickler against Koota.
Hugo L. Black: Do you think the narrowing construction that the Court gave the statute to Epton meets the constitutional problem?
Victor Rabinowitz: No, sir. We argue, of course we'll come to that in a moment, it's a major part of this case. The -- we argue that the statute both on its face and as construed in Gitlow is both vague and overbroad and it is clearly unconstitutional, and I don't think there's any argument about that. The Court of Appeals of New York held as this Court has held on a number of occasions that the Gitlow case is no longer law. In Keyishian in this Court discussed this very statute at some length and held that it was clearly unconstitutional. However, the defendant argues that the New York Court of Appeals in Epton, by means of narrowing construction corrected the defect. And this view was accepted by the three-judge court. The New York Court of Appeals in its opinion narrowing the construction said that, “Well, we think now that the legislative intent of 1902 was to write a constitutional statute.” And of course the constitutional doctrine has changed a good deal since that time, and so we will now say that the legislature in 1902 intended to conform to existing constitutional standards. And the three-judge court echoed this somewhat ever epigrammatically saying, “If the 1902 legislature had known it could not have all it wanted, it would have wanted all it could have.” And on the basis of this, it held the construction, the narrowing construction of the Gitlow statute constitutional. Now, there are two primary questions raised on this face of the case. The first is whether that narrowing construction in Epton is binding on the plaintiffs in this case at all. The overt acts charged in this indictment all took place before the narrowing construction. As I say the indictment here was only 36 days after the decision of the court in the Epton case. So that none of the plaintiffs in this case had any notice at all of the narrowing construction that the Court of Appeals of New York was going to, which obviously I couldn't tell, which later the Court of Appeals of New York was going to read it to the statute. And we submit that the plaintiffs can no more be charged with clairvoyance. If I may echo what this Court suggest a couple of weeks ago in Shuttlesworth, can no more be charged with clairvoyance as to the plastic surgery that the Court of Appeals were deployed to the Gitlow statute then Shuttlesworth could be charged with knowing what the Supreme Court of Alabama was ultimately going to decide in the ordinance under consideration in that case.
Abe Fortas: Are you coming back to the jurisdictional question that Dombrowski point?
Victor Rabinowitz: Does Your Honor mean the question of the injunction, the propriety of an injunction, the Cameron against Johnson problem?
Abe Fortas: I'm talking about the point discussed by in Judge Friendly's opinion and the question whether Dombrowski author -- Dombrowski or any other decision of this Court in fact authorizes a maintenance of this action?
Victor Rabinowitz: Well, --
Abe Fortas: I just want to -- I just invite you to discuss it if you see fit.
Victor Rabinowitz: Yes, sir. Now, I certainly shall, Your Honor. Now, we -- we feel that the, as I say the act -- overt act here were charged after were -- the narrowing construction was not the law of the State of New York, assuming that the New York Court of Appeals had the right to do this at all. It certainly was not the law of the State of New York but till after the Epton decision and we do not believe that the narrowing construction or that the defendants can be held or the plaintiffs in this case can be held liable for that. Furthermore, even in the Epton case the Court of Appeals reconstrued only subdivision 1 of the criminal anarchy law left subdivision 3 and 4 untouched so that -- as to those statutes, those sections of the statutes were true -- which are specifically alleged in the indictment in this case were not construed at all. Now, I submit that the doctrine that a statute which is clearly unconstitutional and which everyone admits is unconstitutional can be reconstrued by a court -- by the highest court of the state is really a most dangerous doctrine. It means that any state can always resurrect the statute which has been declared unconstitutional by this Court, and without any notice to the persons within the state make a silent statute, an invisible statute, a dead statute again come to life. This is much more extreme than the situation in Shuttlesworth because in that case the unconstitutional doctrine was -- the unconstitutional interpretation was pronounced by the Commissioner of Public Safety, and Mr. Justice Harlan pointed out that that was not too reliable an interpretation. Here we have an interpretation by the Court of Appeals. An interpretation which is clearly unconstitutional in Gitlow and --
Potter Stewart: I don't quite understand you, Mr. Rabinowitz, maybe I misread Gitlow, I haven't read that opinion recently.
Victor Rabinowitz: In the --
Potter Stewart: I thought the statute's constitutionality was upheld in the Gitlow case?
Victor Rabinowitz: It was upheld in Gitlow.
Potter Stewart: So how can you say that everybody agrees that this is an unconstitutional statute?
Victor Rabinowitz: Well, I think --
Potter Stewart: But the only time it's come to this Court has been upheld.
Victor Rabinowitz: Well, Your Honor let me -- when I say everybody has agreed that may not be true. This Court in Keyishian said it was unconstitutional. The New York Court said the Gitlow statute as interpreted in Gitlow as read by Gitlow with the Gitlow gloss on the statute was an improper unconstitutional statute. This Court said so in Keyishian. The New York Court of Appeals said so in Epton. The Queens County Court said so in this case. So everyone agrees.
Potter Stewart: Except for the Supreme Court of the United States?
Victor Rabinowitz: No, because I think that the Supreme Court of the United States in the Keyishian case said that the Gitlow -- that discussed this specific statute.
Potter Stewart: Well, that was that statute that was before the Court of the Gitlow case?
Victor Rabinowitz: Yes, sir. Discussed the statute that was before the Court in the Gitlow case and said that it was an -- it said in rather strong language I think. It said that this statute is clearly impermissible under current constitutional standards and it discussed subdivision 3 which is one of the sections here and said that under the statute as interpreted by Gitlow, a man walking down a campus with a copy of Karl Marx's doctrine in his hand might be violating the law. I believe that was the example used by the Court in the Keyishian case. So it will not be argued here today that the Gitlow interpretation is any longer a valid interpretation under the doctrine, even if Dennis for that matter because even Dennis in that opinion suggested that the Gitlow case was really doubtful, and that in many standards inconsistent with, as I say a larger range of cases, the Scales case, the (Inaudible) case, and the whole range of constitutional decisions in the last 10 years of this Court. So that I think that the situation is very similar to the Shuttlesworth case. There, there was and I'm paraphrasing the decision of the court, but I think it's the same paraphrase that Mr. Justice Harlan used. This Court held that where a statute is interpreted in an unconstitutional fashion by the Commissioner of Public Safety that Mr. Shuttlesworth had the right to treat that statute as void and could not be charged with clairvoyance that the Court would later hold that the Commissioner of Public Safety was wrong. Now here, we have not the Chief of Police holding -- giving the statute an unconstitutional interpretation, but the New York Court of Appeals giving what is today an unconstitutional interpretation. Although, obviously, at the time of the Gitlow decision that ipso facto was unconstitutional interpretation because the Court so said so.
Potter Stewart: Of course the point in the Shuttlesworth was a little different as you know. It involved the fact that the licensing authority could not be charged with clairvoyance. If the licensing authority thought that he had absolutely unbridled discretion in the question of whether or not to grant a license for a parade. It wasn't the so much the petitioner's clairvoyance. At least that's the way I understood the opinion. I did write it, you know.
Victor Rabinowitz: I know you did write it, Your Honor. And if that's the way you interpreted it, I -- obviously that's what it must mean. I -- the language is it would have taken extraordinary clairvoyance for anyone to perceive that this language meant what the Supreme Court of Alabama was destined to find that it meant four years later.
Potter Stewart: Right.
Victor Rabinowitz: And I misread it if that's what Your Honor meant. Now, we feel that the Epton laws on the statute still leaves it unconstitutional, and this comes to Your Honor's and Mr. Justice Harlan's question. There is still no clear guidance as to what may or may not be done under the statute. And one of the most serious defects in the Court of Appeals interpretation in the Epton case relates to the clear and present danger or rather unsatisfactory test under the best of circumstances. But at least in the Dennis case, in applying the clear and present danger test, the Court clearly said that there must be a clear and present danger of an overthrow of the Government of the United States. In the Epton case, the Court found it quite sufficient that there was a finding of clear and present danger to commit a riot. Now, if the all that the clear and present danger test means in the eyes of the New York Court of Appeals, and if that is the cause placed on the statute now, is that the crime of sedition requires only that there be a clear and present danger of this order which is a far cry from the overthrow of the Government of the United States, or even the overthrow of the Government of New York, then I submit that we still have a statute that is unconstitutional even under the Epton decision. Now, in Dombrowski, this Court held that it will not abstain in a case such as this -- such as was presented in Dombrowski, where the policy reasons were operated against in one of the elements in the policy considerations, or among the elements in the policy considerations in Dombrowski, which motivated the Court in deciding against the doctrine of abstention, was that this was a First Amendment situation. That it did involve a statute which to refer again to those words which have perhaps been a little overused, it did have a chilling effect on those who, I can't help it Mr. Justice Stewart, everybody says that. It did have a chilling effect on the operation of people who are engaged in political activity and that the statute was of such a nature that it would require repeated applications. That the exact meaning of the statute would have to be hammered out in repeated prosecutions over a long period of time in the state courts if the doctrine of abstention was followed.
Abe Fortas: Well, is it your position that anytime people are prosecuted or indicted and under indictment in a state on account of a conduct that lies within the broad First Amendment area. That is to say any kind of protest activity that a three-judge federal court has jurisdiction to consider the issuance of a declaratory judgment under Dombrowski?
Victor Rabinowitz: Well has authority to issue -- to consider the application for an injunction under Dombrowski and I would say Mrs. Piel will argue this a little more fully of a declaratory judgment if (Voice Overlap).
Abe Fortas: Well, all you have to show then is that the people have been indicted by state and that the indictment relates to conduct within the broad area of speech.
Victor Rabinowitz: Oh! No, sir, I would say you also have to show that the statute is unconstitutional.
Abe Fortas: No, that's to get relief. I'm talking about jurisdiction. Is that what Dombrowski means to you?
Victor Rabinowitz: I think that that's probably a broader reading of Dombrowski then.
Abe Fortas: So what are the exceptions of the qualifications?
Victor Rabinowitz: Well, I would say that where the state is prosecuting, and I may be getting back to the same point, Your Honor, let me try to spell it out. Where the state is prosecuting in a First Amendment area, and where the circumstances are such as to cast a poll inhibit the free exercise of First Amendment rights guaranteed by the First Amendment and the Fourteenth that in that kind of a situation, the federal court has jurisdiction to determine whether the statute is a constitutional statute and whether it should under all of the standards that are set forth under one hand in Dombrowski, on the other hand in Douglas against Jeannette whether it should or should not abstain.
Abe Fortas: Now, could you suggest to me a First Amendment situation which would not fall within that category?
Victor Rabinowitz: Well, I'm not sure for example that an obscenity case would fall within that category. I don't believe that the chilling effect of a vague obscenity statute would be the kind of thing that would cast a poll on political activity within the meaning of the Dombrowski case.
Abe Fortas: Is that to be a political activity?
Victor Rabinowitz: I would say it has to be -- it has to be certainly First Amendment activity. And I would say when we're -- considering that we're talking about casting a poll on the carrying on of activities, I would say it probably has to be political activity. At least I would have difficulty in extending it to an obscenity case.
Abe Fortas: Why is that? Is that because the chilling for example of artistic expression or literally expression is less important?
Victor Rabinowitz: I would say it is less serious in terms of --
Abe Fortas: Then that would make the difference.
Victor Rabinowitz: -- the eminence of the importance of political activity, yes, sir. I don't think it matters a great deal that it may be my personal view on the matter. I don't think it matters a great deal if you have to wait a couple of years to find out whether you can show a movie or publish a book. I do think it matters a great deal to wait a few years to find out whether you can join an organization or distribute a leaflet. To engage in a political campaign and do the other -- carry on the other activities similar in nature. Now, I would like to point out that in this situation, the state was amply protected by other laws. That is thereof, as I say 43 counts and incidentally, two of the defendants were charged and still since been convicted of the crime of conspiracy to murder. So that the state has weapons at its disposal; the gun statutes, the arson statutes, the murder statutes and all these other things to take care of a situation such as this and there doesn't seem to be any requirement in order to protect the interest of the state, while it must impose on top of this a sedition statute phrased in the very broad and general terms of the New York statute. Now, there are other points which I think I'll set forth in the brief, and I'm sharing my time here with counsel in the consolidated case. There is of course the supersession point discussed in the Nelson which is I think adequately brief than which is involved in the next case Harris against Younger as well as in this one. And finally there is the argument or the problem of the effect of Section 42 U.S. Code 1983 on 28 U.S. Code 2283, that is the question of whether the Civil Rights Act is an exception to the provision of the judiciary code with respect to granting injunctions. That issue has been before this Court. It's been argued by this Court so many times that I really don't think it necessary to do it again. It was presented in Cameron against Johnson. I think it's adequately brief that I rest on that.
Potter Stewart: Did Judge Friendly rely on that, I forgot if he ever got to it?
Victor Rabinowitz: No, I don't think he ever got to it.
Potter Stewart: I --
Victor Rabinowitz: He found the statute constitutional, and under these circumstances, following what this Court did in Cameron against Johnson, it really wasn't necessary.
Potter Stewart: He didn't mention that then?
Victor Rabinowitz: I don't believe he mentioned that at all.
Potter Stewart: That's right, thank you.
Eleanor Jackson Piel: If it please the Court. My client is one of the 15 persons indicted in this case. And he has somewhat of a unique position, because although there are 48 counts to the indictment, he is charged with four counts -- three counts of the substantive anarchy. One, of the conspiracy to commit anarchy, and one count which by itself does not seem very serious but is conspiracy to commit arson in the third degree. Now, this will become significant in terms of my argument, although it may not be as significant as to the other appellants in this case.
Potter Stewart: You say there's one count of conspiracy?
Eleanor Jackson Piel: To commit arson in the third degree.
Potter Stewart: No, by the one before that. Conspiracy I think you said to commit anarchy?
Eleanor Jackson Piel: To commit anarchy, yes. There are four --
Potter Stewart: I didn't know that anarchy was something you could commit. I thought that was a state of existence.
Eleanor Jackson Piel: Well, I've had such a long association with anarchy. I finally decided that perhaps committing is the term to be used.
Potter Stewart: What is -- which count are you -- do you remember the number of the --
Eleanor Jackson Piel: Five.
Potter Stewart: Number five, right.
Eleanor Jackson Piel: Five is the -- no, four is the conspiracy to commit anarchy and fifth one is arson. And interestingly enough, you will note there are -- that the overt acts that the -- that all through the anarchy counts, you find the dissemination of ideas by word, by distributing pamphlets. You find assemblage. You find that kind of thing all the way through. But I want to get back to what we claim -- what I claim in this appeal. This is a two -- a double barreled attack not only on the anarchy statutes but also on the grand jury statutes in the State of New York. And they go together very well here, because you have black people, Negroes accused of political crimes and they are indicted by a predominantly white middle-class grand jury which is chosen by statutorily set of subjective standards. Now, I want to go back a little bit to the history with regard to this anarchy statute and what happened to it. It was passed as you know in 1902, and it came to glory as it were in 1920 when in February Mr. Gitlow was convicted of anarchy. Even though as you all recall, he was a socialist. It went through the New York Court of Appeals in 1922 when that court gave a ringing opinion saying that the state had a right to protect not only itself but the Government of the United States from subversion. It was approved by this Court in 1925 in an opinion which specifically excluded the concept of clear and present danger, and that was clarified by a dissent of Homes and Brandeis. And then that statute was never invoked in the State of New York again until the summer of 1964 when William Epton was indicted by a grand jury in August by the same white middle-class set up under the same statutes that we are challenging here. And then there's something that has not been argued in any of the briefs. In fact, I really just came across it. That in 1945 after Epton had been indicted the legislature of the State of New York met and amended the anarchy law, left out force with regard to the overthrow, simplified it a great deal, and also said that the anarchy had to only be directed against the State of New York, and in the practice commentary of the framers of the legislation, Mr. Danzer and Mr. McQuillan. They say this section substantially restates one phase of the former penal laws principle criminal anarchy provisions. And then it goes on to say that they've changed the law because of Pennsylvania against Nelson. In other words, the legislature decided that supersedure had taken place and that the legislature had a right to legislate about state sedition but not about national sedition. And then the little note maker says concededly an offense of limited utility. Alright, now this happened in 1965 but this law was only going to be effective on September 1, 1967. So we aren't really dealing with this law except Judge Friendly did talk about it in his opinion saying that even if -- that we shouldn't be worried about this particular action because these defendants were -- could be -- there was a constitutional statute now that they could be charged against -- it could be charged against them. But I say that it's quite unusual that you have a -- the legislature amending the statute and then the highest court of the state, as it did in Epton in May of 1967, coming down with the decision saying that the statute which had been amended by the legislature was constitutional before it was amended, even though the legislature didn't think it was amended. And I think that there is again a case of first impression before this Court with regard to the power of a court to keep reinterpreting legislative enactments.
Abe Fortas: As purely a state law question isn't it?
Eleanor Jackson Piel: I think it kindly -- it finally reaches and I'm thinking of what Mr. Jackson said this morning that perhaps this due process is not wound up with fairness. But I would think that at a certain point a legislature would not have the -- it seems to be a legislature would not have the right to do two things. Or it would not have the right, constitutionally because it wouldn't be due process to read the plain meaning of language out of what the statute said. I think that would be due process. We know in the decisions of this Court, Winters being a leading one and at being very well established, that the gloss that a state legislature puts on a statute is to be reexamined by this Court by standards of whether or not the gloss is constitutional. And I think there is another aspect of due process --
Byron R. White: By the way, do you challenge here in your -- the constitutionality of the gloss that the Court did to --
Eleanor Jackson Piel: Of the what?
Byron R. White: Of the gloss that the Court did put on the statute in Epton?
Eleanor Jackson Piel: I certainly do. And I will very briefly tell you why. The gloss that the Court put on the Epton statute misses in one respect which is already been mentioned, and that is that it doesn't give fair warning to those persons before -- who committed acts before that the Court told them what the statute says.
Byron R. White: Well how --
Eleanor Jackson Piel: And --
Byron R. White: -- about people today though?
Eleanor Jackson Piel: Alright, as to people today, it seems to me that it misses an important aspect that this Court said Dennis meant when it spoke in Yates. It said that the -- that one of the aspects of the clear and present danger of the overthrow of the Government or the force and violence had to involve a group or a person joining a group which was of sufficient strength to actually accomplish the end. And that was never mentioned by the Court in Epton.
Byron R. White: Do you raise that question up here the constitutionality of the statute as narrowed in Epton?
Eleanor Jackson Piel: I don't know whether I did it adequately, but I certainly am raising it here. And then there is another --
Byron R. White: Well you didn't argue it in your brief, did you?
Eleanor Jackson Piel: I didn't argue it just that way.
Byron R. White: Well, in any way?
Eleanor Jackson Piel: Yes, I said that this case was distinguished from Dennis. I also don't think -- I think there are different principles applying to a federal statute having to do with overthrow of the Government and a state statute. And furthermore, I think that something that Mr. Justice Warren said very clearly in the Nelson case, and that was with it the Smith Act and the whole area of the internal security legislation has proscribed the states from legislating in that area. That doesn't mean they can't have laws saying that people can't go out and get guns together. But they can't talk about overthrow of the Government of the state. And actually, that's what the legislature of the State of New York thought to a degree, not completely because they thought -- they didn't think it that a person could talk about overthrow of the Government of the United States.
Byron R. White: But in any event, I gather the constitutionality of the narrowed statute is raised squarely in the other case also, in the cases just been argued.
Eleanor Jackson Piel: Well, yes, we're actually saying that the Supreme Court or the Court of Appeals of the State of New York can not read all this new language into a statute it has once interpreted 40 years ago in order to make a prosecution hold against a number of black people who have politically unpopular ideas. And I want to bring the Court's attention to what the District Attorney said it was necessary to charge the defendants here with the crime of anarchy along with the other 42 counts of gun possession because the District Attorney had to show the element of intent, and what does he say in the various press releases which are part of the papers in this case? These are -- this is what the District Attorney in this prosecution thinks the defendants were doing “RAM, which was dedicated to the overthrow of the capitalist system in the United States by violence if necessary.” Mackell said the arrested RAM members are followers of Chinese premier Mao Tse-Tung and are associated with another Negro organization called Black Americans Unite or Perish. Their intent was to spur Negro militancy across the nation, police said, following recent ghetto rioting in Atlanta, Tampa, Dayton, Cincinnati, and Waltz. I submit that this statute here is being used in a way similar to what a commentator once said about the using self-incrimination evidence that it's a part of laziness. It's far easier to sit in the shade and rub red pepper in some poor devil's eyes, than to go out in the sun collecting evidence.
Speaker: Could you take a minute just to say what these people were charged with specifically?
Eleanor Jackson Piel: Well, my client was charged with the first count was disseminating -- was talking about the overthrow of the Government of the State of New York with -- by force and violence. The second count was writing pamphlets dedicated towards the same thing with the use of guns -- and the use of guns. The third count was assembly for that purpose. And then the fourth count was -- is conspiracy to do that with a number of overt acts 9 out of 14, I believe having to do with again the dissemination of leaflets, pamphlets, meetings, speech. So that in so far as the anarchy aspect of the case is concerned, it has to do with the dissemination of ideas which are unpopular now. I do not think that this Court can shut its eyes to the fact that the anarchy statute has not been used in New York for anything other, in the 60's and not before that since not the 20's, then to try to proscribe the conduct of black people in expressing ideas which are unpopular. And we are faced with the situation where the Court is acting like a super legislature going along with the District Attorney so that it's more than the punishment fitting the crime, but it's the courts in a sort of after arranged approval of the conduct of the prosecution approving a crime to fit the so-called bad conduct. Now, there has been a great deal of discussion in this Court about hard core conduct as distinguished from other kind of conduct under the free speech cases. And Judge Friendly, in the court below said that these defendants don't have a prayer in his court, because their conduct was hard core conduct. Now, I don't think you can talk about hard core conduct where you have a challenge to a statute that is vague. And this Court held 160 and 160 as fatally vague in the Keyishian case. Now, you might have hard core conduct in a situation where the statute is overbroad where you say that certain things are enumerated which are bad and other things are mentioned which are of -- which don't -- which are too vague or too broad and should not be upheld. But here there is nothing that these defendants did with regard to the anarchy counts that it seems to me is not protected by the First Amendment.
Potter Stewart: Well, these -- these statutes I gather from you and from Mr. Rabinowitz were directly an issue in the Keyishian case, were they?
Eleanor Jackson Piel: They were part --
Potter Stewart: Do you know I did not join that opinion, and I --
Eleanor Jackson Piel: Yes, yes.
Potter Stewart: -- I didn't --
Eleanor Jackson Piel: Yes, in fact it was not -- there weren't a lot of you together on that one.
Potter Stewart: Some of us didn't, but where these statutes directly at issue in the Keyishian case?
Eleanor Jackson Piel: Well, I don't know what -- I can't answer that because I don't know what you mean by directly.
Potter Stewart: Well --
Eleanor Jackson Piel: They came -- it was the definition of sedition was framed by 160 and 161, and sedition was in the Education Act. Sedition was the word used in the Education Act.
Potter Stewart: I see that --
Eleanor Jackson Piel: And --
Potter Stewart: -- supposedly incorporated this by reference.
Eleanor Jackson Piel: That's right, that's right. So that when you read it, it sounds as though this Court is squarely saying that the language as a whole is too vague. And therefore, I don't -- I think that the whole concept of hard core cannot be thought of, because hard core has to refer to a situation where a statute is partly constitutional. It applies to some kind of conduct that the legislature would have a right to proscribe.
Abe Fortas: May I ask you what the present status of the prosecution is? Has it been stayed in any of this?
Eleanor Jackson Piel: It has, pending this decision.
Abe Fortas: Do you have anything further to say with respect to the jurisdictional point, the Dombrowski point?
Eleanor Jackson Piel: Well, I believe you called it hard medicine or something to that --
Abe Fortas: I'd --
Eleanor Jackson Piel: -- to that effect in the dissent in Cameron.
Abe Fortas: Yes.
Eleanor Jackson Piel: I was quite impressed with the intention given to it to the issue by the ALI, where a number of jurist have gotten together and they have come up with the use of the injunctive or injunctive remedy in a situation where the First Amendment is involved, and --
Abe Fortas: You would -- you would then make no restriction as to the use of the injunction and declaratory remedy in any First Amendment prosecution.
Eleanor Jackson Piel: I don't think I have to say I would if any. I'm talking about this case, and I think that this case is appropriately a case where the remedy should issue.
Abe Fortas: Well let's suppose, I know it's not the fact, but let us suppose for the moment that your client as well as some of the others here had been indicted among other things for the unlawful possession of weapons. And their defense is that they possess some sounds of weapons in order to protect their First Amendment rights. Now, do you think, and let's suppose that you wanted to test whether that statue is unconstitutional being too broad or what not? Would declaratory judgment or injunctive remedy be available to you?
Eleanor Jackson Piel: Well, I think that raises another problem which was not raised here, and that is perhaps a hearing to determine what the facts are and the court below might --
Abe Fortas: Well, let's assume that everybody agrees that these people did posses themselves of rifles and pistols and in violation of the state statute, and that they did so because they thought that was necessary in order to protect their First Amendment rights. Do you believe that the District Court would be proceeding properly to entertain an action for declaratory judgment or injunction, assuming that these people had been indicted under that statute?
Eleanor Jackson Piel: Well, without answering your question, I would say that it differs from the one here, because there we are assuming that there is a valid state statue and that this prosecution that the defense of the defendant is that it was a First Amendment defense.
Abe Fortas: Well, assume -- assume that it's an invalid state statute, assume that --
Eleanor Jackson Piel: Well, that is the rub in this case.
Abe Fortas: -- it's too broad or what not, assume that.
Eleanor Jackson Piel: Well, if it is too broad as this anarchy statute and couldn't be applied at all, then I think it would be a very appropriate basis for a remedy.
Abe Fortas: In other words -- well that's what I was getting at. In other words, as I understand your position, declaratory judgment and suit for injunction in a federal court lie with respect to any state statute and any indictment provided that the defense -- provided that it is asserted or that the defense is that the activity involved is within the broad First Amendment area? That's your position.
Eleanor Jackson Piel: I don't -- I don't want to be the author of that position. It seems to me that one may narrow the issue down quite a bit. We have some interesting other factors in this case. We have the highest court of a state having given a clearly erroneous unconstitutional in my opinion.
Abe Fortas: Alright.
Eleanor Jackson Piel: Interpretation of the statute, it might be that the federal court would want to abstain until the state had an opportunity to take action. That might be a consideration.
Abe Fortas: But as I -- as I understand it, one of the points that Judge Friendly made below is that you ought to wait until there is some judgment in the criminal action, and then prosecute the accused.
Eleanor Jackson Piel: Well may I tell you why I think -- why I very personally would not like to wait? This --
Abe Fortas: I can imagine.
Eleanor Jackson Piel: Well, I'm not sure that you can, because there is a precise reason. My client Fred Fernandez could very easily go to trial tomorrow as William Epton did on the anarchy charges and this arson in the third degree. The judge could what Judge Marko which he did in Epton, very conscious that your -- that these nine gentlemen were here, and give a concurrent sentence on the arson charge, in this case of one year, which Your Honors would say that since there is a valid state statute which supports the conviction. We will abstain even though Mr. Justice Stewart thought it came properly before you, you might like to reconsider the validity of the anarchy statutes of the State of New York.
Abe Fortas: Well, I'm interested that you're sure of that, and we would abstain the cause of the concurrent sentence rule.
Eleanor Jackson Piel: Well, you've done it once before. I don't -- of course that isn't necessarily a precedent.
William J. Brennan, Jr.: Do I understand your view of the case is present for a reversal on the constitutionality of the statute? In other words upon declaratory judgment contrary to that was reached by the –- of constitutionality which was reached by the three-judge court.
Eleanor Jackson Piel: Yes, and I --
William J. Brennan, Jr.: I don't need -- I noticed that Mr. Rabinowitz's brief also asks that we decree that the petitioners there are entitled to enjoin the prosecution, but that you do not?
Eleanor Jackson Piel: Well, I've said --
William J. Brennan, Jr.: For reason for the --
Eleanor Jackson Piel: I've said in the footnote that I don't believe an injunction is necessary that if this Court were to declare the anarchy statute unconstitutional, I can imagine --
William J. Brennan, Jr.: Like they did at -- that the New York courts would respect that declaration and not attack the prosecution?
Eleanor Jackson Piel: Right.
William J. Brennan, Jr.: I wondered whether it was why Mr. Rabinowitz's brief --
Eleanor Jackson Piel: Well --
William J. Brennan, Jr.: -- doesn't seem to be quite as confident as you suppose.
Eleanor Jackson Piel: No, I just seem to me that I should ask for what I thought --
William J. Brennan, Jr.: You can get?
Eleanor Jackson Piel: -- was in order and an injunction does present some pretty naughty problems, and Your Honors have not yet faced that in here.
William J. Brennan, Jr.: Well, I -- I suppose Zwickler and Koota suggested that those are two different things. You may be entitled to a declaratory judgment but not from an injunction.
Eleanor Jackson Piel: That's -- that's correct. I just want to close with --
William J. Brennan, Jr.: And of course you had -- well so you that you had a declaratory judgment here now.
Eleanor Jackson Piel: Well I've had a declaratory judgment the wrong way.
William J. Brennan, Jr.: Yes, of constitutionality --
Eleanor Jackson Piel: The wrong way.
William J. Brennan, Jr.: -- of constitutionality and what all you're really asking for us is that we reverse that declaration and hold with you on that issue, isn't it?
Eleanor Jackson Piel: That's correct. It seems to me that we've got a sedition law just like the ones we had back in the 18th century. And James Madison said that they were monsters who will -- whose parents could never get over them.
Earl Warren: Mr. Ludwig.
Frederick J. Ludwig: Mr. Chief Justice, and may it please the Court. This indictment is aimed not at the discussion or dissemination of ideas on anarchy, communism or what have you. But on the accumulation of an arsenal of weapons and ammunition and gasoline and black powder to overthrow or paralyze, overthrow for a week, a month however so long local government installations. What is the evidence in this case on this unusual review in the high court? The evidence, the real evidence in this case consists of 6,524 rounds of ammunition, plus 32 boxes of ammunition, plus six cans of ammunition, enough ammunition with a good marksman to kill 9,000 people. This ammunition was seized pursuant to an arrest warrant plus a search warrant after the indictment of the appellants in this case. In addition, we have 43 guns similarly seized pursuant to an arrest warrant after the indictment of these appellants, plus a search warrant particularly describing what was to be seized. These weapons --
Potter Stewart: And how did that evidence get into this case? I thought this was an --
Frederick J. Ludwig: This is part -- -- action for an injunction and a declaratory judgment in the federal court?
Potter Stewart: Yes, this is part of this case -- the real evidence in this case.
Frederick J. Ludwig: This evidence had been seized already. We've had --
Potter Stewart: Is that in the record?
Frederick J. Ludwig: We can't -- we have -- it's in the grand jury minutes from page 1 to 45, and if Your Honor wishes, I'll hand them up for the consideration of this Court alone. I'm not permitted to publish them in the record and give opposing counsel grand jury minutes. It's customary in our high court of our state to hand up grand jury minutes to the high court alone and let them consider whether or not there was sufficient evidence or for a grand jury to hold someone in contempt without giving the other side the entire investigation.
Potter Stewart: I thought Mr. Ludwig this case was decided basically on the plea on a complaint to which was attached a copy of indictment and then on an answer?
Frederick J. Ludwig: Well, it might --
Potter Stewart: That there was no evidence as such and it is there'd be no real evidence.
Frederick J. Ludwig: Except that Your Honor, the indictment talks in the first four counts about and 19 overt acts specified in count five about discussions. And I thought it might be material resolving a question of what constitutes free speech to have some inklings about the nature of this discussion. And for that reason, I still offer if the Court wants to peruse them whatever value they may have, the grand jury minutes consisting of page 1 to 151 given on -- testimony given on June 20, 1967 and on June -- on January 15, 1968 for the superseding indictment relating to these weapons in describing them by serial number and color and so forth, pages 1 to 145. I happen to have with me a certified copy. If the Court would --
Abe Fortas: The State of New York has statutes on unlawful possession of firearms and ammunition, I suppose?
Frederick J. Ludwig: Your Honor, I happen to be the draftsman of those 10 consecutive sections of the penal law which were revised in 1963 and were continued without any change when the entire penal law was revised in 1965 to take effect September 1, 1967.
Abe Fortas: Yes, so were these people indicted under those sections?
Frederick J. Ludwig: Yes, they were indicted under --
Abe Fortas: But they were also indicted for the advocacy of something, were they anarchy or overthrowing the government and they were indicted for some of the overt acts charged to them, or holding meetings to discuss that and so on, is that right?
Frederick J. Ludwig: Yes, Your Honor. Now, this is something that neither counsel appears to understand because they have not read the Weapons Law. Section 1897 is the heart of the Weapons Law. It's been continued in the new penal law. This law, a derivation of the old Sullivan law makes it criminal without proof of anything more if you possess a handgun, that's a gun, a pistol, a revolver, an automatic, four counts in the indictment deal with handguns.
Abe Fortas: Is that true in the case of both these appellants? Of all of these appellants, is it true in Fernandez's case?
Frederick J. Ludwig: No.
Abe Fortas: I gathered from counsel that she said her client was not involved in that.
Frederick J. Ludwig: No, she is not. It is not true, Your Honor. The other remaining 37 counts of the 41 that deal with weapons, deal with shoulder guns, rifles, shotguns, and carbines. Now, it is not criminal in New York to possess one of these guns unless you can prove intent to use the same unlawfully against others. Obviously, there are many hunters and other people that want rifles. The usual criminal prosecution for possession of a rifle or a shotgun or a carbine, the intent is to rob somebody, to assault him or possibly to rape some woman. In this case, there is no such intent. The intent is merely to overthrow the local (Inaudible) -- the local government. Now, the way this prosecution came about because of the statements made by counsel might be of interest of this Court. A large investment in time and money, and not simply sitting under a shady tree rubbing red pepper into the eyes of someone else was expended by the police. Several undercover detectives were assigned over a period of almost two years and they joined and infiltrate this organization. One of them got into the higher councils of the organization, became a vice-president of it was in on all of the discussion. This man by the way showed remarkable courage because in November of 1966, it was stated to him by the leader of the organization that they knew someone of their members was an agent, an enemy agent or law enforcement agent. In any event from what the police told the District Attorney, this infiltration started in October 1965. In April of 1967, the police first came to the District Attorney. And this is what they told us, they told us about these discussions. They told us what these discussions concern; how to make a bomb, whether you use a wine bottle with thin glass containing gasoline, or a soft drink bottle with thicker glass. When you use one, when you use the other, how you make it. The problem of the fuse which is difficult to get, how can you hand make a fuse? One fuse is a pack of cigarettes; pardon me, based lighted cigarette on a pack of matches on top of the Molotov cocktail, the gasoline. Another one is to get a rubber tube, fill it with black powder and insert one end into the Molotov cocktail and light the other. Still another one, when you pour gasoline into the streets and you don't want to burn yourself, use a flare gun not a match because you would go up to the flames. How do you -- how do you manufacture a bazooka, which we used in World War II in the Korean War as an anti-attack gun? Well, you use a shotgun and a Molotov cocktail and of how you can combine the both. How you use gasoline in the streets to prevent police response? How you pour gasoline to communications manholes into the publicly owned and operated subways to burn down two lumber yards, to burn down a tire factory, and how you similarly use oil? How you disable responding public vehicle -- of local government? By slashing tires, by putting sugar in gas tanks, by sniper fire -- 22 caliber sniper fire aimed at the windshield. How you disable electric power and how you differentiate high-tension telephone wires from high-tension electrical wires? How --
Speaker: Just a matter of evidence, when were these indictment returned?
Frederick J. Ludwig: On June 20, 1967, the original indictment was returned. After one day of testimony before the grand jury by these undercover police agents, the warrants for the arrest of these appellants, particularly the same day.
Speaker: Well that would all of it two years now, is that it?
Frederick J. Ludwig: That is correct.
Speaker: Beyond anything the date now?
Frederick J. Ludwig: That is correct. I wanted merely to go to the --
Earl Warren: May I ask why spend the two years without prosecuting them for all these offenses you talked about?
Frederick J. Ludwig: Your Honor, it's because of so many motions that have been made in this case. Never before in the 70-year history of our county, which is the fifth largest in the United States have so many motions been made in the single case. We have weighed the papers on a scale. They've weighed 20 pounds all total. Everybody made a motion and joined in someone else's motion. And we did however, based on the testimony given pages 1 to 151 these grand jury minutes which the Court may or may not accept if it wishes. We returned another indictment, conspiracy to murder two civil rights leaders Whitney Young and Roy Wilkins. We tried that indictment and convicted before a jury two of the appellants here, Harris and Ferguson. And that conviction is pending on appeal.
Speaker: How long have you been in the federal courts?
Frederick J. Ludwig: Since March 12, 1968, when application was first made by the appellants to get a three-judge panel. And the decision of the three-judge panel came down in June of 1968, and then application is made for this Court's review.
Abe Fortas: May I ask you whether that's the federal court proceedings that have held us up, or is it this error -- would the proceedings have been delayed in any event?
Frederick J. Ludwig: The delay from June 20, 1967 to March 12, 1968 has no connection with the federal court. From March 12, 1968 until today March -- April 1, 1969 is purely federal delay.
Abe Fortas: Why is that? No injunction status.
Frederick J. Ludwig: No, the District Attorney -- one of the assistant district attorneys agreed that they await the outcome of proceedings. And if this Court did not note probable jurisdiction it would've gone to trial the next day in the state court.
Abe Fortas: I see. So it's not because of a stay issued by the District Court over by this Court?
Frederick J. Ludwig: No, no Your Honor. Now, I'd like to say briefly that that's what's involved in this case. It's not advocacy of ideas or opinions. It's advocacy of minute detailed action. I want to add one or two more types of actions here besides the assassination. There are other personal types of instruction that I have never seen in any curriculum in my life. I have never known there was a cause in mayhem for example. How you use the blunt end of a hatchet against a policeman and disable him by hitting him on the base of the spine. I never heard of aikido, a Japanese combination of karate and judo, which operates on the principle of hitting you at a joint so as to break the distal ends of the bone. This is some of the instruction that went on during this two-year period that these people were being observed. Then, interestingly enough and this is finally what caused the grand jury to act in Queens District Attorney to submit it. They had a test run on June 16, this indictment, this matter was presented to the grand jury on June 20. A test run involving two of these appellants when they went out in a car and tried out these tactics, firing shots at stall windows in South Shoemaker in Queens. Now, under these circumstances, we thought it best after plans had been formulated, a timetable made as these minutes will disclose to the Court, weapons had been accumulated and distributed and they were ready to go that now if the heart and catastrophe was to be prevented, action had to be taken. Now, I wanted briefly make the point that under subdivision 9 of Section 1897, you must prove intent if it's a shoulder gun. And the intent that the District Attorney intends to urge in this case is the intent to overthrow local government. Not to rob anybody, not to assault any passersby, not to you do what 999 out of a thousand rifled cases that we prosecute involved, but the rather unusual intent, this magnificent protest gesture of overthrowing the local establishment.
Hugo L. Black: Is that a crime in New York? You made a crime in that language?
Frederick J. Ludwig: No, it merely says anyone who possesses a dangerous weapon, and weapon is defined as rifle and shotgun. Firearm is different, that's a handgun. Anyone who possesses a rifle or shotgun in effect with the intent to use the same unlawfully against another is guilty of misdemeanor. Now, we could not --
Hugo L. Black: Is it a crime to have it with intent to overthrow the government?
Frederick J. Ludwig: We maintain it is, yes. We maintain it is.
Hugo L. Black: In that language?
Frederick J. Ludwig: No, not in that language, Your Honor.
Hugo L. Black: Well, what then?
Frederick J. Ludwig: It says merely with intent to use the same unlawfully.
Hugo L. Black: To use the same unlawfully?
Frederick J. Ludwig: Unlawfully.
Hugo L. Black: Well, what law would it bother?
Frederick J. Ludwig: The law that we --
Hugo L. Black: You say unlawful, now which one is that statute?
Frederick J. Ludwig: Section 1897 subdivision 9 of the former penal law.
Hugo L. Black: What does it say?
Frederick J. Ludwig: It says anyone who has in his possession a dangerous weapon with intent to use the same unlawfully against another.
Hugo L. Black: But I'm talking about beyond that, whereas anything it said that would be unlawful?
Frederick J. Ludwig: Yes. In a criminal anarchy statutes of the former penal law Section 116.
Hugo L. Black: And what does it say?
Frederick J. Ludwig: It says that a person who advocates the overthrow of government by force or violence or unlawful means is guilty of criminal anarchy.
Hugo L. Black: A question of advocate?
Frederick J. Ludwig: That's right. And that is where the unlawful intent of a possession of these weapons would come in 37 of the 41 counts that deal with weapons in this indictment. Now with respect to --
Thurgood Marshall: Mr. Ludwig, if they've got these rifles and they're going to overthrow the government, is it an assumption they'd shoot somebody, wouldn't it?
Frederick J. Ludwig: I don't know because in this test run that I've made reference to Judge Marshall, they didn't shoot --
Thurgood Marshall: I'm not interested in any test run. I'm not interested in anything but the indictment in this case and the pleadings in this case. Couldn't you have indicted them for the possession of the carbines for the purpose of harming somebody, period?
Frederick J. Ludwig: If we could prove whom they wanted to harm, not people generally. But if I could prove that he was going to shoot his brother-in-law or that he intended to take two druggists in the corner then, yes.
Thurgood Marshall: What you're really doing using the criminal syndicalism statute to enforce the possession statute?
Frederick J. Ludwig: Yes, Your Honor, yes.
Thurgood Marshall: Well, certainly the criminal syndicalism statute wasn't intended for that in any time, right?
Frederick J. Ludwig: Yes. Well, Your Honor, the intention of the draftsman of the weapons statute in 1963 --
Thurgood Marshall: That's what I'm saying. You said you drafted it.
Frederick J. Ludwig: I was only the draftsman, a committee of draftsmen.
Thurgood Marshall: Did you have that in mind?
Frederick J. Ludwig: Yes, because we thought that --
Thurgood Marshall: You have in mind combined it with the criminal syndicalism of the statute?
Frederick J. Ludwig: Not particularly the criminal --
Thurgood Marshall: You mean not at all, is that true?
Frederick J. Ludwig: -- syndicalism statute Your Honor, but any thing defined in the penal law is unlawful was what was meant by the word unlawful in subdivision 9 of former 1897 of the penal law.
Thurgood Marshall: You meant what you said was --
Frederick J. Ludwig: And that included criminal anarchy.
Thurgood Marshall: I thought maybe you might have meant you said a minute ago that it was specifically the end of some specific course.
Frederick J. Ludwig: Oh no! No Your Honor, no. It was just one of the provisions of the former penal law that were included when these weapon statute were redrafted in 1963. That was in --
Thurgood Marshall: Well, my only point is that what you need to prove the case is one thing, and what you put in the indictment is another. And you admit that the only way to convict these people for the possession of these guns is by the criminal syndicalism statute, is that your position?
Frederick J. Ludwig: Yes, Your Honor, in 37 counts not four of the other weapons counts, 37, yes Your Honor.
Weinstein: As the two courts below said, they're not really separate taxes, they're merged into one. The use taxes in so much as a matter of raising revenue by itself, but it's a complement in a means of enforcing the sales tax. And I would suggest that this is double taxation when a sale -- serviceman buys a car in one state and is charged a sales tax and he goes to the other -- another state where he is then charged a use tax, which use tax would not have been imposed if he had originally bought the car in the second state and paid a sales tax.
Speaker: Would there be use tax imposed in this transaction in the commerce to the interstate by the man or?
Weinstein: In one of two situations. If as Commander Foster tried to do, the serviceman seeks to register his car in his home state, generally the home state will seek to impose a tax. The other thing which comes to the potential of double taxation which is also within the purposes of this statute is that ultimately, we would -- I'd assume the serviceman is going home. And when he goes home he brings back his property with him whatever he's acquired. And at that time, he is going to be subjected to a use tax on this property. And this is the point in time when double taxation is almost certain. I suggest really in terms of potential for double taxation, this ought to be compared to the structure of the ad valorem taxation. Ad valorem taxation isn't going to be doubly imposed anymore frequently than the use tax or in sales tax structures. It would really depend on the accident of a man being switched from jurisdiction to jurisdiction within one year being in one state on its ad valorem tax day, and then in another state later in the year or earlier on its ad valorem tax day.
William J. Brennan, Jr.: Mr. Weinstein, do I understand that the basic thrust of your argument is that since Congress has said that possession shall be treated as in the case of the serviceman's personal property his possession in his home state that there is not that possession, which is the incident upon which the sales tax in Connecticut terms?
Weinstein: That's right.
William J. Brennan, Jr.: This Court to tell -- that's the basic thrust of your argument.
Weinstein: That's right. Sales tax --
William J. Brennan, Jr.: But double taxation and all the rest of it is really quite irrelevant. If you're right about that, if Congress has said, “No, you have to treat his personal property as if it were in Texas, his domiciliary state.” Whatever Texas may do is Texas business as to sales taxes. But in any event, Connecticut can't impose a sales tax because there's no possession of the car in Connecticut.
Weinstein: That is our position. I think that the other side argues that the phrase, the initial phrase of the statute for the purposes of taxation in respect to personal property means only ad valorem taxation in respect personal property. It doesn't catch any other tax. And I see that my --
Abe Fortas: Well, what's the part of the statute on which you rely, go back to page 2 of your brief, because as I read that it says, “Such person shall not be deemed to have lost a residence or domicile in his state solely by reason of being absent there from the compliance of military orders, or to have acquired a residence or domicile in the other state.” Now, is somewhere in that part of the statute, do you find this Court for your position?
Weinstein: In speaking of personal property, Justice Fortas, I think there are two potential bases for imposing a tax, and they're dealt within two separate sentences here. One is a tax that proceeds on residence or domicile on taxes personal property.
Abe Fortas: Now, that's not applicable here, would you agree?
Weinstein: No.
Abe Fortas: Now, what's the other one?
Weinstein: No, and that is the first sentence Justice Fortas.
Abe Fortas: Yes.
Weinstein: Now, the sentence that begins on the top of page 3 in the middle of the first line which again begins for the purposes of taxation in respect of, it doesn't say person now, but personal property, income or gross income. First, it defines the --
Abe Fortas: Of any such person.
Weinstein: Of any such person. Now --
Abe Fortas: Which indicates property, personal property owned by the person, doesn't it?
Weinstein: Yes, and that would be I think a reference to the “any person” in the first sentence perhaps modified, and I suppose modified by the language -- person being absent there from, from his home state in compliance with military or naval orders in the first sentence. And then as you go one in this sentence, first it describes a source of income and says military pay shall not be deemed to be from within the home state. And then for present purposes, the language is personal property shall not be deemed to be located or present in or to have a situs for taxation in such state territory possession or political division or district.
Abe Fortas: Well, just reading that plainly in a common place manner, it does seem to support the state's position rather than yours, doesn't it? In other words, you have -- your position has to depend upon doing a little magic with the words, doesn't it in taking what you deem to be the sense of the provision rather than its specific language?
Weinstein: I think that that -- whether that is so depends on how the sales and use tax statutes work. Now, use tax statutes are applied only when property is within and used within the --
Abe Fortas: No, but the use tax in this sense, as I understand it is a sales -- it's a part of the sales tax in the sense that it is a complimentary to the sales tax for the purpose of trying to plug what would otherwise be an obvious hole under the sales tax.
Weinstein: Yes, but the sales tax --
Abe Fortas: Isn't that the kind of use tax we're talking about here?
Weinstein: Yes, but the sales tax also depends on physical presence of the property in the taxing jurisdiction. Under the Connecticut statute and while the language is different in other states, the effect is the same. The tax is imposed only when there is a sale and when physical possession is taken in the taxing jurisdiction.
Speaker: What is the legal instance of this tax?
Weinstein: This is the same kind of tax that was before the Court last term in the Massachusetts Bank case and it's a vendee tax. The legal incidence is on the buyer. The seller is given an action in debt to collect -- and is directed to pass the tax on to the buyer. And it's clearly a vendee tax.
Potter Stewart: But the seller is directly liable to the state to return this --
Weinstein: The seller is liable to the state. The buyer is liable to the seller. And it's the same structure as this Court labeled a vendee tax last term.
Potter Stewart: The tax purports at least to be imposed upon the transaction, isn't it rather than on the property? It's upon the transaction --
Weinstein: Well --
Potter Stewart: -- the sale measured by the value of the property sold.
Weinstein: It's imposed on the sale of tangible personal property. So that it purports to be on the sale, but it's not just the sale alone. There must be tangible personal property. And the word sale and selling are defined in the statute, in the Connecticut statute in words that are quoted in pages 28 and 29 of the brief here. And it says mean and include any transfer of title, exchange or barter and so forth.Now, transfer of title under the general rule of the Uniform Commercial Code which applies in Connecticut and I think almost all states by now is the title is transferred when the seller's responsibility is asked to delivery or complete it, so that this definition of sale incorporates a concept of a transfer of physical possession so that you can't view the sale tax as simply being on some abstract privilege of selling.
Abe Fortas: Well no, not necessarily. That is to say you couldn't have a transaction in Connecticut, I've had some in which there's no transfer of physical possession what the sales tax is collecting.
Weinstein: Well, if there is no transfer of possession, if the property is supposed to stay a word as this brings in to play a different part of the Uniform Commercial Code which would transfer title at that earlier time. But I think where we're talking here about movable chattels, boats, cars, appliances, things of that sort, there are things that contemplate transfer.
Abe Fortas: But which we're mostly talking about here I suppose is food and drink.
Weinstein: Food and drink under the stipulation, I think would -- the stipulation says that everyday purchases are made in the post-exchange or commissary. And those under the Buck Act which is I think Section 107 of Title 4 are explicitly exempt from sales and use tax.
Abe Fortas: I understand that, but how about is it stipulated here -- I noticed it stipulated at, at least I think I remember it's stipulated that no attempt would be made that there is no opposition to the collection of the sales tax with respect to groceries bought in a grocery store in New London for example by a soldier. What about that?
Weinstein: I didn't understand that to be in the stipulation. I just understood that that --
Abe Fortas: Well, is it the Government's position that when a soldier goes into a store in New London to buy a pack of cigarettes that he's exempt from the sales tax?
Weinstein: Well, if I can avoid the cigarette tax which is different state --
Abe Fortas: No, I'm talking about the sales tax on --
Weinstein: I'll take the sales tax on it.
Abe Fortas: -- on a pack of cigarettes.
Weinstein: Such say a tube of toothpaste which --
Abe Fortas: Alright.
Weinstein: I think the position on this side of the case would be that the exemption applies simply because there is no way of parsing neither Section 514 or the Connecticut tax to apply to only to say big ticket items and not to small purchase.
Abe Fortas: That's what I thought and in short that your position is that the sales tax ought not to be collected on the purchase of toothpaste by a soldier from the store?
Weinstein: Yes, I think the impact. I'm saying that that's the thrust of the legislative judgment in this statute. The function of the stipulation I think is to show that that kind of impact is not likely to exist because purchases of this kind are not made in stores that are generally subject to that type of -- to the state tax but are made in official installations where the tax doesn't apply.
Potter Stewart: I think I remember in the -- in your opposing counsel's brief that Connecticut imposes a sales tax on the rental of motel rooms, is that correct?
Weinstein: Yes, I think whether that would fall under Section 514.
Potter Stewart: It hardly would fall under the language would it?
Weinstein: I'd like to start by saying I don't think that's in this case. At least it has --
Potter Stewart: But it does I think -- I think counsel for the state makes that point to emphasize his position that the tax is imposed upon the transaction and that rather than being a tax on property.
Weinstein: Well, I think I've struggle with the problem of how do you characterize the right to occupy a motel or hotel room for a night. And under Section 514 the problem comes down to whether you can characterize this right as an intangible personal property. If it is, it would be exempt. I suspect it isn't. It seems to more in the nature of a real property interest which would not be caught. But whether that comes under Section 514 is a rather different problem than these admittedly tangible items which have physical location that do move around, where a hotel room doesn't and certainly seem to be the type of objects that Section 514 was intended to deal with. Now, there are other points that I think are adequately covered in part 1 of the brief which is the discussion of the Buck Act, the supposed administrative problems and the constitutional attack which I think this Court put to rest in the case of Dameron against Brodhead some years ago.
William J. Brennan, Jr.: Before you establish this, I shall ask you one more question about the matter we've been discussing at the outset of your argument? I've looked at this Arlington case, apparently this is the rationale of the Government standing to bring this suit. I'm quoting from it, “Here we find that the interest of the national government in the proper implementation of its policies and programs involving the national defense is such as divest in it the non-statutory right to maintain this action.” Under these circumstances, the incapacity of the individual plaintiff to maintain his action is immaterial since he may find shelter under the Government's umbrella. Now my question is, I gather the policies and programs of the United States when this action was brought were on the side of the servicemen, and that would be the justification. And the defense in issue of the right of the Government to maintain the suit had been raised. But now here we come to -- when you come to this Court, apparently the Government's policies and programs have changed. Does that have a bearing on whether or not we have a case of controversy before us?
Weinstein: I would think that the existence of the controversy -- again I would like to go back to the confession situation, because in the confession situation the Government is clearly saying now, we don't think now that in a criminal case this man could've been prosecuted or should've been prosecuted in this way.
William J. Brennan, Jr.: No but it seems to me Mr. Weinstein by the time it gets here, if there's a change in policies and programs, why isn't this moot? Why don't we just vacate it and direct all down the line to hold action be dismissed as moot? The Government now no longer insists that it's enforcing its policies and programs in the state.
Weinstein: The very least there is here is a controversy between the servicemen and the state, which --
William J. Brennan, Jr.: I know, but they can't be in the federal court. The individuals were dismissed here are just as they were dismissed in this Arlington County action. And we have the same situation here that we have on Arlington County namely the only party before us as plaintiff is the United States. And its standing to be here depends on whether or not it's seeking by being here to enforce its policies and programs, and now it's not.
Weinstein: The difficulty I have is in distinguishing between this case as I said and I guess I'm not adding anything new to what I've said in any instance of confession of error. I think that the -- what you're saying would lead to the route that if there is a confession of error that would moot the controversy, certainly if the confession went to the propriety of the charge say that was brought as opposed to some --
William J. Brennan, Jr.: No, I'm not seeking to. I don't think this is -- as I see it now, I don't think it's any issue of confession of error at all. It's a simple question of the right of the United States to maintain an action, which is not brought as it comes to us to enforce its policies and programs in the interest of national defense. It may have started out that way, but that's not as it's presented to us.
Byron R. White: And the servicemen have no right to be in the trial court.
William J. Brennan, Jr.: Be here in total.
Byron R. White: Or to be here at all. You agree with that, don't you?
Weinstein: If this were the District Court or Court of Appeals after last Wednesday, I'd have to agree with that because I think it was last Wednesday that decided the case. And I don't think it was a prediction of that outcome that --
William J. Brennan, Jr.: You don't know why they dismissed that navy commander in the Arlington case, did you?
Weinstein: Well he was just -- you mean why did he not appeal?
William J. Brennan, Jr.: No, he was dismissed out of the action. The only -- when this got before the Court of Appeals as I read that opinion, and they said only the United States can be here if the United States can be here.
Weinstein: He was this -- are you taking about the Arlington County case?
William J. Brennan, Jr.: Yes.
Weinstein: I'm sorry I was confused.
William J. Brennan, Jr.: No, the Arlington County case, I'm sorry.
Weinstein: I'm not certain about it, but I assume its reason similar to this case where one man would not ordinarily have $10,000.00 jurisdiction alone.
William J. Brennan, Jr.: Yes, $121.00 you see.
Weinstein: Yes, but if I can just try once more on this analogy. Suppose a criminal charge is brought and the claim of the defendant is that this charge is barred by the Constitution and this is the matter in which the case is litigated. And in this Court there is a confession of error to it a statement that it is then the position of the United States that this charge is indeed unconstitutional. Now, I --
Byron R. White: But there's no question in that case that you're about extend the statute to give you the authority to do what you're doing in this statute as a matter between the state and the servicemen and the criminal case between the United States and the defendant.
Weinstein: I would think --
Byron R. White: And just because the United States says that this -- that they're confession of error doesn't necessarily mean that the Court has to accept, or that there isn't any case of controversy in this situation.
Weinstein: Perhaps this would -- it seems to me that the United States which clearly has a function as a guardian for certain purposes of servicemen, in that capacity would have a capacity that is different and distinct from its position as its general position as sovereign.
Byron R. White: Is that your separate rationale from the Arlington County?
Weinstein: Yes, but I think it is part of that because the servicemen's interest --
William J. Brennan, Jr.: Well, may I put it this way Mr. Weinstein, I suppose the position of the United States when this suit brought in the District Court was that which is now presented to us by the Solicitor General and that were to appear. Under Arlington County, could not the District Court have had to dismiss the action?
Weinstein: I think that you -- it's hard to know what would have done. For example, it would be entirely possible for the Department of Justice to appear on behalf of the other side of the case. Now perhaps then it would have been brought in a state court rather than the federal court. Now, I think -- I would suggest the District Court and Court of Appeals jurisdiction has to be viewed in terms of what the situation was at that time. This Court is --- would have jurisdiction certainly of this case and it came up through the state system, and if you were to argue that the case or controversy has disappeared as between the United States, I think in terms of this Court's jurisdiction, it still has to be considered in terms of the existence a capacity on the United States to appear as the representative, as the guardian of the servicemen.
William J. Brennan, Jr.: Which is only to say that the issue is the standing of the United States to maintain this suit in the federal court?
Weinstein: But that an issue which would depend on something that developed after the decision in the District Court and Court of Appeals.
Earl Warren: Mr. Weinstein, I don't think we'd have any problem in this case if what you're arguing to is, was the position or is the position of the United States Government that this is an adversary suit between the United States and the State of Connecticut and we come into this Court? And we don't have an adversary proceeding at all. We have no argument at all on the part of the United States in this Court as to what it believes the public interest is or the rights of these veterans. We have a contrary view that is the opposite of what the Government says officially. And we close this case without any argument at all from the Government as to why it agrees with the State of Connecticut in this particular matter. Isn't that a strange situation?
Weinstein: Well as I -- it is -- as I said it is uncommon. As I said earlier, I do not think it is unprecedented. And it occurs to me now that there is a case that I might have cited that would be somewhat better for this purpose than the Kornhauser case, and perhaps I should've cited it first. And I think this is Burnet against Northern Trust Company. Again a tax case, I believe from the 1930's and I -- it may be in 283 United States reports, I'm not certain. But this is a situation where the brief had one half prepared -- one part prepared by the revenue, by the Treasury Department and the other half by the Department of Justice. And the Treasury appeared to present its case, although the controversy is as much there between the Government and the taxpayer.
Earl Warren: But here is a different situation. That's two agencies of the Government. But here all we have here as I see it is that the Government, the official position of the Government is that the statute of the state is constitutional. And this is an internal fight in the department and the Solicitor General having taken the official position for the Government does not appear, and those in his employ come here and argue the opposite way from the way he comes out, and will after that any argument at all on the part of the United States.
Weinstein: I suppose the case would be -- had been closer to the Northern Trust if this case had been brought in the name of the Secretary of Defense as the Northern Trust case was brought against the Collector of Internal Revenue.
Earl Warren: That might be different, but we've had that with the ICC. We've had the Solicitor General on one side and the ICC on the other. We've had it with the Selective Service recently. We've had it with a number of them. But we haven't had it because of an internal difference of opinion in the Department of Justice where the deputies of the Solicitor General prevail over the Attorney General and although -- or over the Solicitor General, and now although he states his opinion in general terms, the deputy comes in here and argues against that position.
Weinstein: I did not in -- I hope I didn't characterize my function in that way. I tried to put it in terms of the being assigned to come here for an adversarial presentation.
Earl Warren: Well, did you argued to us the official position of the Government?
Weinstein: No, I cannot say I did.
Earl Warren: No, well then you hardly have given us a balance view with this situation. Well, I no intent to barge in, I just -- it bewilders me and bothers me as to whether we have had an adversary proceeding here.
Weinstein: Well, I think I'll cite what I can offer on this Mr. Chief Justice.
Earl Warren: Yes, well I think we have on this, very well. Mr. Ahern did you have anything further?
Ahern: I have nothing further to add Mr. Chief Justice.
Earl Warren: Very well.