William H. Rehnquist: We'll hear argument now on number oh one seven fourteen, Utah versus Donald L Evans, Secretary of Commerce. Mr. Lee. [Inaudible]
Thomas R. Lee: Mr. Chief Justice and may it please the Court. For most of the history of the census of the American population, that census has been conducted by means of an actual count unaltered by any methods of statistical estimation. At the time of the first census of seventeen ninety, James Madison noted that this was the way required by the Constitution and ever since then, that requirement is employ- been implemented by Congress in the Census Act. The question presented in this case is whether the Census Bureau acted unlawfully in departing from that longstanding historical tradition by using the method of estimation called hot-deck imputation in the two thousand apportionment count. Ninety-nine point six percent of the two thousand apportionment count was comprised of actual data compiled by census enumerators in two phases. First, a mailing sent to all addresses on a master address file, and second, as many as six follow-up visits. Imputation added an additional point four percent to that count, one point two million statistically generated persons were added to the apportionment count by means of a statistical estimate. Th- The basic essence of the estimate was to say the six hundred and twenty thousand addresses that the Census Bureau was unable to enumerate are assumed to have estimated to have the same number of occupants as their next door neighbor...
Sandra Day O'Connor: Mr. Lee, I I would like to ask you to address early on whether this injury that Utah alleges to have suffered is redressable in any fashion. Things have happened since the census was taken. North Carolina presumably has drawn districts and has gone quite far down the road in reliance on the census. The President has turned over the numbers and so forth. How can this be redressed, do you think, now?
Thomas R. Lee: I I suppose, Justice O'Connor, that there are two aspects of your question if I'm understanding it. One of them would be a a redressability standing question. That's a question as the Solicitor General notes that has already been decided by this Court both in Franklin and in Montana...
Thomas R. Lee: with regard to... Well, there's...
Sandra Day O'Connor: jurisdiction, but I don't know that we have really addressed the redressability issue fully in prior cases.
Thomas R. Lee: It it would have been impossible, Justice O'Connor, for Utah to have brought a challenge prior to the census.
Speaker: indicated...
Sandra Day O'Connor: why is that? I mean, you knew, did you, that the Census Bureau planned to use it?
Thomas R. Lee: Yes.
Speaker: knowledge.
Sandra Day O'Connor: had an injury.
Thomas R. Lee: We wouldn't have had an injury, and in fact as the Census Bureau itself indicates, there would have been no way even to have anticipated that imputation would have had this...
Speaker: effect.
William H. Rehnquist: you have no incentive to bring a challenge until you know that you are losing a congressional seat, I...
Speaker: suppose.
Thomas R. Lee: That's exactly right.
Anthony M. Kennedy: Well, was there a window of time between completion of the census and the the submission of the numbers to the President where you could have sued? How long was that period of time?
Thomas R. Lee: the that was , the the time line is that the Secretary must submit the numbers by the end of the calendar year to the President, and then the President must submit those numbers within seven days after the first day of of the Congress.
Anthony M. Kennedy: Well well, if you prevail, what's what's supposed to happen?
Thomas R. Lee: The remedy that we're asking for, Justice Kennedy, is simply a declaration and an injunction to the Secretary of Commerce directing the Secretary to issue a new apportionment count free of the statistical estimates that we believe are unlawful under the Census Act and under the Census Clause of the Constitution.
David H. Souter: Well, what's su- supposed to happen under the Act? I mean, the act, I went back and read the Act last night.
Thomas R. Lee: And I think, Justice Souter, that's effectively North Carolina's argument.
Speaker: token...
David H. Souter: I I will presume that, too, but that was four justices, and there there wasn't a specific discussion of of what is supposed to happen under the statute, even assuming the President sort of takes counsel from our opinion.
Thomas R. Lee: And and the other opinion in that case, Justice Souter, that also addresses this issue was Justice Stevens' concurring opinion, for a separate four-justice concurrence on this issue, and his analysis was in fact that the statute would require the President to conform to a revised count that the Secretary might present in conformity to...
Speaker: a decision of this Court.
David H. Souter: He said and as you know, I I I joined his opinion.
Speaker: Why...
David H. Souter: will they, I mean, it it's it seemed so to me at the time but it's a real issue in this case, as to whether the the statute which is which is geared to delivery of information at certain times can in effect reverse itself.
Thomas R. Lee: The other point that Justice Stevens made in his concurring opinion, Justice Souter, which I think is critical on this issue, is that the time deadlines under the statute can be understood only to trigger, o- o- only with regard to the issue of ripeness.
Speaker: and hide the issue...
Antonin Scalia: tho- those are not cases where after, the after the deadline provisions, you have a, r- m- a a basic change in, in in in the court's role, that after the deadline in this case, you are going to have to, the court is going to have to issue an opinion that purports to bind the President.
Thomas R. Lee: Yeah.
Speaker: point.
Anthony M. Kennedy: But I mean that's, that's even worse.
Thomas R. Lee: Well, the, the the order would go to the Secretary.
Ruth Bader Ginsburg: Mr. Lee, do...
Speaker: Well what what if if I if I may...
Anthony M. Kennedy: just a- what what's what's what's your closest case to show that a a declaration of this kind satisfies s- the requirement of redressability?
Thomas R. Lee: Well, I I believe it's Franklin, Justice Kennedy...
Anthony M. Kennedy: Par- excuse me.
Thomas R. Lee: Well the the...
Speaker: the Franklin was...
Anthony M. Kennedy: fractured opinion...
Thomas R. Lee: W- one understanding consistent with Justice O'Connor's opinion in Franklin would be that of a declaratory judgment.
Speaker: Well, it it it it...
William H. Rehnquist: does bind the parties in a certain extent.
Thomas R. Lee: That's right, Mr. Chief Justice, and I and I think that that's consistent again with with Justice O'Connor's plurality opinion in Franklin.
Speaker: [Inaudible]
Antonin Scalia: We've we've never held that a declaratory judgment will issue where the Court has no power to to compel the action that the that the declaratory judgment describes.
Thomas R. Lee: Well, Justice Scalia, but I think there are two alternative theories.
Speaker: But the secretary might repres-
John Paul Stevens: also that whether or not the President would respond, at least the Secretary would have a have a duty to do something in response to our order.
Thomas R. Lee: That's exactly...
Speaker: right, Justice Kennedy...
Ruth Bader Ginsburg: common that in in suits the President is not named, and the Secretary is.
Thomas R. Lee: The final step, Justice Ginsburg, in this process, is for the clerk of the House of Representatives to forward to the states a certificate that shows how many seats in the House of Representatives they're entitled to after the clerk receives the revised numbers from the President.
William H. Rehnquist: You only have a certain amount of time, Mr. Lee.
Thomas R. Lee: Well, the the actual enumeration clause of the Constitution would require an actual count, and...
William H. Rehnquist: Okay.
Thomas R. Lee: Yes, they do, Mr. Chief Justice, and one of the reasons is that the mere fact that there are lights on and and cars there doesn't tell us that this is anyone's usual place of residence.
Speaker: But do- but doesn't con-
William H. Rehnquist: It doesn't confirm it but i- is isn't it a permissible inference for the census takers?
Thomas R. Lee: Well, at some point a census taker may make a conclusion, if it's based on information specific to an individual household, may make a conclusion that a household is in fact occupied.
Speaker: and that's what...
David H. Souter: Would you, on that theory, would you agree that although they may not impute a number beyond one, it would be fair for them at leaf at least to count it as one? Because they start out as I understand it with a in affect a report from post office saying you know this is a house at which somebody lives.
Thomas R. Lee: Justice Souter, they they don't start out with a proposition that this is a house and somebody lives there.
David H. Souter: Well, doesn't an an address usually mean somebody lives there, at least if we can establish that it's a residential neighborhood?
Thomas R. Lee: Not necessarily, for a number of reasons.
Sandra Day O'Connor: What percentage of homes in the United States when they take the census turn out to be vacation or second homes?
Thomas R. Lee: I I don't have that number handy off the top of my head, Justice O'Connor.
Speaker: unrelated...
Sandra Day O'Connor: e- techniques apparently treat all the dwellings that are identified as residences to be counted? They don't discount for a percentage that are vacation homes?
Thomas R. Lee: No.
Stephen G. Breyer: That that's saying that they're doing it bad.
Thomas R. Lee: I think not.
Speaker: [Inaudible]
Stephen G. Breyer: Now, why not?
Speaker: and they make an...
Stephen G. Breyer: assumption that if the pizza man delivers pizza to the place and people eat the pizza, IE at least it disappears, that there is someone in the house? Can they make that assumption?
Thomas R. Lee: The- they cannot, Justice...
Speaker: Breyer. People...
Stephen G. Breyer: the assumption about the pizza man.
Thomas R. Lee: No.
Speaker: What...
Stephen G. Breyer: there's a sign in front that says this is not a vacation home.
Thomas R. Lee: Well then I suppose I suppose under those circumstances, then we'd have...
Speaker: Fine. Once you're down that,
Stephen G. Breyer: once you're down that road, then you're then then I can easily construct examples where the imputation is absolutely as strong.
Thomas R. Lee: No.
Stephen G. Breyer: You know have to take that position.
Thomas R. Lee: I I think it's important, though, to to answer your question, Justice Breyer, to to go back to the baseline of the House of Representatives decision.
Speaker: here's why.
William H. Rehnquist: Are you suggesting, Mr. Lee, that the Census Bureau goes about this thing in in a way, s- say supposing you have a lake in northern Wisconsin where the temperatures get down to about forty below in the winter.
Thomas R. Lee: Well, i- if they know that there's somebody who's living there, they have to find out whether the somebody who's living there lives there as as his usual place of residence, or that person doesn't count in the apportionment count.
Speaker: going...
Sandra Day O'Connor: under the imputation method as I understand it, the assumption is made that if a house is there, that it is a residence, and a second assumption is made that the number of occupants will be that in in a general geographic area of other homes.
Thomas R. Lee: That's right.
Anthony M. Kennedy: I'm I'm I'm curious both in your argument here this morning and in the brief, I I think both parties seem to assume that the key question is whether or not this is sampling.
Thomas R. Lee: Our position is, Justice Kennedy, that any method that takes information from a part of the population to make an inference about the whole is a is a method of sampling and is prohibited.
Speaker: example.
Thomas R. Lee: It it it's called the method of of quality assurance, and i- at the quality assurance phra- phase, what the Bureau does is to randomly send out enumerators to given census tracts to try to find the tracts where there are a large number of errors, where the enumerators may have made a lot of mistakes.
Speaker: What a what a what a...
William H. Rehnquist: about a house where they have not been able to find anybody to talk to, no returns sent back, so they go to the people next door and they say is there anybody living in that house and the person next door says yes, there are two people.
Thomas R. Lee: That is permissible under our theory.
Anthony M. Kennedy: But...
Speaker: but...
Anthony M. Kennedy: but but the Act refers both to sampling and to other methods of statistical adjustment.
Thomas R. Lee: Well, there may be another way to to get there, Justice Kennedy, but my understanding under the statute is that Section one ninety-five prohibits the statistical method known as sampling.
David H. Souter: Yeah.
Thomas R. Lee: I- in fact, Justice Souter, that is not a distinction.
Speaker: the House of Representatives case.
David H. Souter: it it it wouldn't in a literal sense if you were simply making one imputation at a time, but you were making a long series of imputations from the one sample, in this case, the one house.
Thomas R. Lee: But Justice Souter, once you pool all of the individual housing units together, the six hundred and twenty th- seven six hundred and twenty thousand, rather, of these housing units that were used to estimate the six hundred and twenty thousand addresses that we know nothing about after six follow-up visits, that's your sample.
Speaker: That's your group.
David H. Souter: isn't six hundred and twenty to tell you about just any random six hundred and twenty.
Thomas R. Lee: Mathematically it seems to me, though, Justice Souter, we get to the same end.
David H. Souter: Yeah, but that, I mean that would be true about any inferential conclusion.
Thomas R. Lee: It it is also true, however, Justice Souter, of the method struck down by this Court in the House of Representatives case.
Speaker: Mr. Lee, go...
Sandra Day O'Connor: Well Mr. Lee as I understand it, the imputation method that was actually used after the two thousand census has the effect of counting non-households as households in some instances.
Thomas R. Lee: That's correct, Justice O'Connor.
Sandra Day O'Connor: And it counts one household several times in some instances.
Thomas R. Lee: That's correct, because some of...
Speaker: Yeah, all right.
Sandra Day O'Connor: And it's and the imputation is not based on the nearest neighbor.
Thomas R. Lee: Well, ordinarily, as I understand it, it is the nearest neighbor address that's used to estimate or impute the address about which we know nothing.
Speaker: That's not...
Sandra Day O'Connor: That's not my understanding, but we can explore that with the other side.
Thomas R. Lee: That's exactly right and and of course the scale of the practice is beside the point.
Stephen G. Breyer: Well, it that they say it isn't beside the point.
Thomas R. Lee: Well, Justice Breyer, let me mention two reasons why that distinction doesn't get them anywhere.
Speaker: All right we have the statistical definition...
Stephen G. Breyer: but my question was directed at a particular problem that, if I take your approach I can't get myself out of.
Thomas R. Lee: The the problem with the distinction is, another problem with the distinction is that it's clear that it would permit the Census Bureau to replicate the nineteen ninety-seven plan.
Speaker: I don't understand...
Antonin Scalia: the the pizza man.
Speaker: No, no it goes from the whole to the parts.
Antonin Scalia: it's it's not the same kind of inference that that is done by what yo- what by what you say is sampling mainly, im- im- imputing information that belongs to a part to the whole.
Thomas R. Lee: Yeah m- maybe, Justice Scalia and Justice Breyer, maybe I missed the pizza man example, but but that may well, the that may well be a a a distinction.
Sandra Day O'Connor: I didn't think the imputation involved any actual things like looking at, when pizza was delivered.
Speaker: That's what's going on.
Thomas R. Lee: That's precisely right, Justice O'Connor.
Speaker: ninety-seven.
Ruth Bader Ginsburg: Lee, didn't it prove out that, a- after, that in the majority of these cases, something like seventy-five percent, that th- they know for sure that these were houses where people lived?
Thomas R. Lee: A- Actually not, Justice Ginsburg.
Ruth Bader Ginsburg: But you don't have a n- negative showing, either, that that it wasn't accurate? And it there was something Justice O'Connor said, and and I'm not sure that I fully understand it.
Thomas R. Lee: That's right.
William H. Rehnquist: Very well, Mr. Lee.
Walter E. Dellinger, III: May it please the Court, because North Carolina believes s- very strongly that the right time to challenge the Census Bureau's planned use of a statistical method is before rather than after the census is completed, and let me begin...
Speaker: by addressing...
Sandra Day O'Connor: how could i- the challenge have been brought before Utah knew that the imputation figures caused this problem?
Walter E. Dellinger, III: Under your decision in House of Representatives, I think on...
Speaker: page...
Walter E. Dellinger, III: three thirty-two, you note that citizens of Utah, you didn't specify the state, but citizens who anticipate that the use of a method like imputation, as suburbanites might, would dilute their intrastate districting representation, are specifically said in House of Representatives to have authority to bring that suit.
Speaker: response to...
William H. Rehnquist: you can't bring a suit before you know what what's going on.
Walter E. Dellinger, III: Yes, you can, Mr. Chief Justice.
Speaker: But Mr. Dellinger,
Ruth Bader Ginsburg: a state can't, are you suggest there are suburban people, city people, a state can't, until it knows what the result is going to be, and Congress used the words any aggrieved person.
Walter E. Dellinger, III: Justice Ginsburg, that is correct, if a state is unable to show, does not have the experts about a forthcoming census that is unable to demonstrate that it will be aggrieved.
Speaker: But they are...
Ruth Bader Ginsburg: aggrieved at the end of the line.
Walter E. Dellinger, III: They are now, but my point is that if Utah had been watching this carefully, and as you know, many states were involved in the ninety-seven litigation as amici and otherwise.
Speaker: But he had no incentive...
Antonin Scalia: He had no incentive to do so.
Walter E. Dellinger, III: I understand...
Speaker: that, Jus-
Antonin Scalia: he could have gotten a s- a stalking horse to, some suburbanite to bring the suit but he had no no notion that it there was any reason to do that.
Walter E. Dellinger, III: It seems to me that that is i- i- e- i- exactly correct, but that it's it's exactly why any governor, major city mayor or others, these citizens, that those who brought suit in nineteen ninety-seven and did not include this, i- suburbanites are going to hurt, would want to sue, could bring the suit, but in any event, they could also participate in the Bureau's process.
Sandra Day O'Connor: Is there a statutory time period for people to challenge the the Census Bureau proposed techniques before the census is taken? Is there some provision whereby that challenge can be made?
Walter E. Dellinger, III: Yes.
Sandra Day O'Connor: Mhm.
Walter E. Dellinger, III: and that suit allows aggrieved parties to bring suit when the census produces its plan.
Speaker: certainly at least...
Sandra Day O'Connor: but i- is it a fact that somebody is aggrieved when you are at the stage of the Census Bureau just saying this is what I plan to do?
Walter E. Dellinger, III: Yes.
Sandra Day O'Connor: Mhm...
Walter E. Dellinger, III: that's exactly how it worked in House of Representatives, if you do that plan, we expect that our district will be diluted.
Speaker: The...
Speaker: the l-
William H. Rehnquist: does the law provide for some sort of administrative hearing be- before the Census Bureau, some sort of an exhaustion requirement? I thought that's what you were suggesting.
Walter E. Dellinger, III: Yes.
William H. Rehnquist: Bu-
Speaker: but you say...
William H. Rehnquist: now the Bureau, i- i- i- is is that well publicized? Is there some person you can go to in the Bureau and say I don't like what youre doing?
Walter E. Dellinger, III: Yes.
Stephen G. Breyer: Seems unfair to Utah, though, to say that they are supposed to bring a suit before they know they have been hurt and why.
Walter E. Dellinger, III: Justice Breyer, those who sued in the House of Representatives litigation had a very thin basis for knowing that they would be adversely affected.
Speaker: Well, of course,
Stephen G. Breyer: sometimes you could guess in advance, but a lot of times you couldn't, and it's important that there be a fair method that treats states fairly.
Walter E. Dellinger, III: I...
Speaker: So why,
Stephen G. Breyer: why would it be fair, any way, to cut off those states that don't know they've been treated unfairly and hurt, until they find out later?
Walter E. Dellinger, III: And here's why.
Ruth Bader Ginsburg: Bis- Mr. Dellinger, you have recognized that your argument is, a state in the position of Utah that can't project what the returns will be, does not have, does not qualify as an aggrieved person at the only moment in time when it can say that it it's aggrieved.
Walter E. Dellinger, III: Yes.
Antonin Scalia: Are are you sure they were not aggrieved at the beginning? I'm I'm surprised that you I mean, i- is it not an aggrievement for the State of Utah or for any state that its districts are distorted? Even if it doesn't doesn't lose, you know, congressmen for to another state, isn't the distortion of the districts within that state b- a grievance of that state?
Walter E. Dellinger, III: That is a very helpful answer, and that is not a very helpful suggestion.
Speaker: court...
Sandra Day O'Connor: before you go on to the merits, you have nothing else to say then about justiciability? I mean, let's suppose they can file a suit.
Speaker: Wh- what's the remedy...
Sandra Day O'Connor: going to be at the end of the day at this stage?
Walter E. Dellinger, III: Oh, at this stage?
Sandra Day O'Connor: Yeah.
Walter E. Dellinger, III: Justice O'Connor, that is a very good question.
Speaker: [Inaudible]
William H. Rehnquist: of what,
Speaker: I'm sorry...
Walter E. Dellinger, III: Justice Rehnquist.
Sandra Day O'Connor: Mr. Dellinger, this isn't really a use of proxy information.
Walter E. Dellinger, III: Yes, it...
Speaker: is.
Sandra Day O'Connor: have to be realistic about that.
Walter E. Dellinger, III: Yes, it is a statistical method a- by which you take, when you have a known established household address, the information from the you know basically the next door neighbor, somewhat refined, Justice O'Connor, d- the the next door neighbor that was a nonresponding household of a similar type and they found over the years that that information is more reliable than zero.
Speaker: That's just part...
Sandra Day O'Connor: of it.
Walter E. Dellinger, III: It imputes only to known addresses.
William H. Rehnquist: Thank you, Mr. Dellinger.
Speaker: Mr. Chief Justice and may it please the Court.
Anthony M. Kennedy: Do you agree that that's a statistical methodology or is it just a method of making deductions from circumstantial evidence?
Speaker: We agree that it is a statistical methodology, Justice Kennedy, and it's very important in that context to focus on the words of the statute.
Speaker: Well I thought the statute...
Anthony M. Kennedy: also said that statistical adjustments pose a risk.
Speaker: It does not say that.
Stephen G. Breyer: Wh- why why, just out of curious- I mean, I'd like to understand this better.
Speaker: Well, yes, I think that's an extension of it.
Speaker: count...
Speaker: the space and impute it im- impute the size of the space...
Speaker: yes...
Speaker: by the book that is...
Speaker: immediately next to it.
Stephen G. Breyer: Why is it called statistical? Why isn't that just ordinary inference? W- w- why is why why why did you you said we do it statistically? What's statistical about...
Speaker: it?
Speaker: I'm not sure.
Speaker: count it possibly can.
William H. Rehnquist: heads of household have been used as proxies.
Speaker: That's correct, Mr. Chief Justice, and that's that's was the way it was done in seventeen ninety.
William H. Rehnquist: That doesn't seem too statistical sir.
Speaker: Well, it's it's not necessarily t- statistical.
Sandra Day O'Connor: Yeah, on the merits, I think i- we have to know whether this so-called hot-deck imputation is a form of sampling.
Speaker: It well it...
Speaker: it...
Sandra Day O'Connor: it appears that it might well be.
Speaker: Well, Justice O'Connor, the expert agency to which Congress delegated this broad authority doesn't believe so.
Sandra Day O'Connor: Why do we call it hot-deck?
Speaker: Hot-deck...
Speaker: imputation is distinguishable from cold-deck imputation in the sense that information from the most current census and the actual neighborhood, the most current available information for the actual census that's being developed is being used.
Antonin Scalia: Of course, against all of that, and I'm I'm not sure why we should give deference to the agency here.
Speaker: They have but well, they have what this and as a matter of fact, in in the unanimous decision of this Court in the Wisconsin case six years ago, the court said substantial deference should be owed to the agency.
Antonin Scalia: There's a lot of water over the dam since six years ago.
Speaker: But the reasoning of the Court, I would submit, is...
Speaker: I was...
Antonin Scalia: refer to Meade in particular.
Speaker: Justice Scalia, and and not only the Wisconsin case, but the other decisions of this Court which have considered census have suggested that the framers of the Constitution by using the word enumeration didn't mean a particular method by which the census would be conducted, nor did it wish to constrain both the Congress and to whom whom whomever the Congress may delegate...
Speaker: [Inaudible]
Antonin Scalia: Even sampling, presumably.
Speaker: Presumably.
Antonin Scalia: Pretty accurate...
Speaker: Poss- Possibly Justice Scalia. But we're nowhe- we're not remotely close to...
Speaker: that and this is not remotely sampling...
Speaker: Is is...
Anthony M. Kennedy: is this remotely estimation?
Speaker: This is not remotely estimation.
Speaker: that the gross estimation...
Antonin Scalia: Why isn't it estimation? You...
Speaker: you...
Antonin Scalia: estimate that there are so many people in this house because the house next door to it has that many people.
Speaker: You don't call that estimation?
Speaker: In each of these cases, Justice Scalia, the words can be changed and and added to, but the process that by which the framers analyzed this in the in the f- in when framing the Constitution, the very first House of Representatives was assigned according to an estimation, and the words actual enumeration were used e- to compare an actual count, an effort to find the actual number of people by indulging in a...
Speaker: process...
Anthony M. Kennedy: that's why I asked about estimation is y- you say there's a difference in an estimation and a deduction, I suppose.
Speaker: What what I think the Constitution imports with reto- respect to the term actual enumeration, is an effort to go out and find a count.
Speaker: that they...
Antonin Scalia: think sampling Sampling would have been okay as far as the Constitution is concerned? Real, real sampling?
Speaker: I I I think that...
Antonin Scalia: the state and just guess that the other third is pretty much like that.
Speaker: Well, we're not remotely close to that here.
Speaker: but with respect...
Antonin Scalia: but your argument is that since enumeration doesn't mean anything except census, sampling would be okay.
Speaker: From from the standpoint of the Constitution, I think a reasonably good argument could be made and the Government has in the past made it, that sampling if it's if it if it is consistent with the process of an attempt to find an actual count utilizing...
Speaker: sofisticated...
Speaker: accurate r- and non-manipulatable techniques...
William H. Rehnquist: Surely the term actual, though, before the word enumeration, is narrows the idea the the enum- , what might otherwise be an enumeration.
Speaker: I I believe it does and and I think, Chief Justice, the District Court in this case distinguished actual actual enumeration from the conjectural apportionment that a- [NO AUDIO] House of Representatives.
Speaker: cer-
Antonin Scalia: wasn't bad that's that's that's not the issue.
Speaker: Well, we we...
Speaker: felt...
Antonin Scalia: do, do, is it your position that the Pre- that the President will have to do whatever, whatever, accept whatever revised census figures are submitted to him by , by the Secretary?
Speaker: If this Court is to, or- s- determines that the process by which the two thousand census was conducted was inconsistent with the statute or inconsistent with the Constitution and orders the Secretary to take out the imputed...
Antonin Scalia: Right.
Speaker: numbers and deliver a different piece of information to the President...
Antonin Scalia: Right.
Speaker: the President will transmit that certificate or that certified, those certified results to Congress for the process.
Antonin Scalia: he he...
Speaker: the President will do what this Court assumed in those cases that the President would...
Speaker: He...
Antonin Scalia: he he's oh you he's told you that that that's what he'll do?
Speaker: The President will...
Antonin Scalia: See s- because I sort...
Speaker: of wouldn't. I...
Antonin Scalia: sort of wouldn't want to make the people of North Carolina mad by taking away one of their representatives.
Speaker: say,
Antonin Scalia: look at this judgment of the Court, doesn't run against me.
Speaker: The President is willing to...
Speaker: accept the import, not only of the Franklin and the other decision that we referred to, but also if this Court decides that the process was unconstitutional or inconsistent with the statute, the President will accept that, this Court's judgment in that respect...
Speaker: and act according...
William H. Rehnquist: then if if another, if the next President comes along, we have another case like this,
Speaker: Well...
William H. Rehnquist: and the next President tells his Solicitor General, I will not accept it, then we come out differently.
Speaker: Well, if, if f- for for that reason, Mr. Chief Justice, the Court decides that that is not the kind of result that this Court can issue, because of that possibility, we'll accept that result as well.
John Paul Stevens: Mr. Olson, you are saying we can presume the President will obey the law?
Speaker: Yes, Justice Stevens.
Anthony M. Kennedy: But what happens after that? He transmits to the c- to the Congress, I take it the clerk of the Congress says not certified, or the of the House has not certified the results yet? Or...
Speaker: I'm not sure of the answer to that question.
Speaker: certification...
Speaker: if that should occur.
Antonin Scalia: Wait, you you say you presume the President will obey the law.
Speaker: works works...
Antonin Scalia: you are accepting the position that the President must, even if he didn't want to, that the law requires him to transmit what whatever the Secretary gives him, is that right?
Speaker: What we're sa- what we're...
Speaker: saying...
Antonin Scalia: answer that question yes or no.
Speaker: and he has no...
Antonin Scalia: no, no objection?
Speaker: I only can answer it this way, Justice Scalia.
Speaker: transmit that...
Antonin Scalia: is not the question I asked.
Speaker: General Olson. The question...
Antonin Scalia: I asked is whether, you s- you say the President will obey the law.
Speaker: takes. Is...
Antonin Scalia: that correct?
Speaker: If it is based upon a decision by this Court that that the Court has the power to issue...
Speaker: issue...
Antonin Scalia: to tell the Secretary that le- let's assume we we we say we have the power to tell the Secretary does does the President acknowledge that he is bound by law to transmit whatever figures the Secretary gives him?
Speaker: I think that that that would only occur in the context of this Court's decision.
Speaker: If not, he's not bound by law and I don't think you are going to...
Antonin Scalia: give that away.
Speaker: We're I don't think we need to or give anything away, Justice Scalia.
Antonin Scalia: Fine.
David H. Souter: You seem to be accepting Marbury and Madison.
Speaker: Let me just summarize because my time is about up.
Speaker: conducted.
William H. Rehnquist: your time by two minutes.
Speaker: Thank you, Mr. Chief Justice.
William H. Rehnquist: Thank you, General Olson.
Thomas R. Lee: Thank you, Mr. Chief Justice.
Speaker: to...
Sandra Day O'Connor: what we said in the Wisconsin versus New York case referred to by your opponent, Mr. Dellinger.
Thomas R. Lee: I I'm...
Speaker: I'm not quite following...
Sandra Day O'Connor: to this very kind of action, this imputation, and indicated that that was vastly different from the broader statistical?
Thomas R. Lee: Yeah, I I I don't believe that was an issue in that case, first of all, Justice O'Connor.
William H. Rehnquist: Thank you, Mr. Lee.
Speaker: The case is...
William H. Rehnquist: submitted.
The Marshal: The honorable court is now adjourned until Monday next at ten o'clock.


Warren E. Burger: Next in number 49 Original, the State of Illinois against the City of Milwaukee and others. Mr. Herzog, you may proceed whenever you’re ready.
Fred F. Herzog: Mr. Chief Justice and may it please the Court. This is a motion by the State of Illinois asking this Court for a leave to file a Bill of Complaint against various Wisconsin municipalities including and foremost the city of Milwaukee which as you know quite well contains within its boundaries, the greatest concentration of people and industry in the State of Wisconsin. Now, the Bill of Complaint is quite simple. It merely charges that huge amounts of raw sewage and inadequately treated sewage are dumped everyday into the waters of Lake Michigan that these waters thereby become contaminated and that these polluted waters find their way into the Illinois territory where this severely and I mean severely endanger the life and health of many residents of the State of Illinois. Actually, in this particular instance, the Department of Natural Resources of the State of Wisconsin which is the agency which deals with water pollution matters in the State of Wisconsin has estimated that 200 million gallons a day, 200 million gallons a day in the Milwaukee area alone are discharged into the waters of Lake Michigan. Now, this is not a small matter. And it is not a small matter as we in Illinois are concerned therewith. We in Illinois, I must put here the matter straight in this instance have actually done everything possible to wipe out pollution. Of course, there are some spots which are remaining but it was through efforts of our Attorney General who is sitting next to me here that we have accomplished that. And I might say here in this instance that we cannot tolerate and suffer that such an epidemic, a possible epidemic lurks behind every way which really finds its way into the Illinois region. We are familiar, unfortunately, in Illinois with such an epidemic. In 18 -- the 1880’s, the City of Chicago dumped raw sewage into Lake Michigan. The consequence was one of the severest typhoid epidemics which ever hit the City of Chicago -- having shrink the population of Chicago and it was at that time that the Chicago Sanitary District was created where the flow of the rivers as you might know is reversed and for a -- nothing goes into Lake Michigan on this instance. We have -- we are actually here in this particular instance, we have really a situation where sovereign interest clash with each other. Although the suit is filed by us performer against various Wisconsin municipalities, in reality -- in political reality and in effect it is directed against the State of Wisconsin. As a matter of fact, the respondents all in their briefs say and emphasize that they are controlled by the Department of Natural Resources of the State of Wisconsin which are just indicate that this -- the agency which is in charge of water pollution matters particularly those concerned in Lake Michigan. Therefore, we have here, as I indicate it a clash of such sovereign interests, the municipalities and State agencies merely being the bearers of the sovereign police power of the State of Wisconsin in the field of public health. Under these circumstances, I respectfully suggest that if you have such a clash of sovereign interest, the exercise of original jurisdiction approaches the constitutional mandate -- I might even say it becomes mandatory here in this instance. We have an example here too, in the case of Missouri versus Illinois, although the Illinois they have -- the State of Illinois was made to perform party. The real culprit if I may say so was the Chicago Sanitary District against which the complaint was levied by the State of Missouri and there reached -- original jurisdiction was exercised.
William H. Rehnquist: Mr. Herzog, is from a pollution point of view are -- is the way that Waukegan and Wilmington when that they have to handle their raw sewage materially different from the way that Kenosha and Racine, Milwaukee handle theirs?
Fred F. Herzog: Yes, they handle it presently different. First of all, as far as we made this concern, it belongs to the matter to the area of the Chicago Metropolitan Sanitary District. Hence, their extensive treatment is provided and it doesn’t go into Lake Michigan but as far as Waukegan is concerned and to the communities in the North Shore Sanitary District, they are presently under orders of our Pollution Control Board, the Foul Water Control -- Pollution Control Board not to emit any sewage into Lake Michigan. So, they do handle it differently. As I said, due to our efforts and the persistent efforts which we have made in this field. Now, being here, a clash of inter-controversy involving sovereign interest, I have indicated that really original jurisdiction is almost mandatory in this instance. However, even if they alleviate form or the substance in this instance and say, “Well, the complaint is really not directed officially against the State of Wisconsin.” Nevertheless, I can only reemphasize again that these State agencies and these municipal corporations and I might say that one of the agency is actually a state agency namely the Milwaukee --the Sewerage Commission of the County of Milwaukee where they may emphasize appointed by the governor of the State of Wisconsin. But as I said, even if he looked at these municipalities, nevertheless, they are the bearers of sovereign interest. They carry out within their territory the police power of the State of Wisconsin in the field of public health. The question has been asked by this Court, “If the Court exercises jurisdiction, what law would apply?” Well, we submit here that Federal Common Law must apply in such an instance. It must apply because the mere idea of sovereignty demands the application of such a law. It cannot be a State law although maybe the Federal Court here can freely draw from state resources of law. About the law which is applied is Federal Law -- a Federal Law which has to take into consideration the equality of the sovereigns which are involved and has to take into consideration the backdrop of various Federal Laws which will come into play.
Warren E. Burger: Mr. Herzog, is Congress free to specify the law or to fashion the law applicable in a suit like this?
Fred F. Herzog: A Congress is free and about to -- I’m sorry to say that the entire Bill both laid on Congressional Report here, in this instance, that Congress has actually delegated the power here to the various states. As far as what the quality standards are concerned. Thankfully, in my humble opinion, this is a drawback in this instance. That it is left to the individual states to control even water pollution and to control it where actually in these interstate disputes, there are sovereign interests clash with each other.
Byron R. White: Are we -- is this Court free despite the decision of Congress to leave this matter to the State and ourselves to fashion a federal standard that would govern this case?
Fred F. Herzog: No, Mr. Justice White, I really believe here in this instance that under the constitutional mandate of Article 3 where the Court must really hear controversies which are in effect between states, this Court must fashion its own law and cannot --
Byron R. White: Regardless of what Congress said?
Fred F. Herzog: Irregardless here in this instance of Congress an overwriting law of Congress which says that in this instance, Federal -- certain Federal Principles must be applied which hasn’t been the case here.
Byron R. White: And if Congress said that Federal Laws could govern cases like this but this Court should borrow State Law in deciding the case, would you be bound to follow that direction?
Fred F. Herzog: Well, I -- indeed in this instance, frankly I question where the Congress can tell this Court what law to apply in cases of original jurisdiction to be decided on the Article three of the Constitution.
Byron R. White: Let’s assume that it can, just for the moment. Let’s just assume that it can, it has it?
Fred F. Herzog: No. It hasn’t clearly acted in this matter. It hasn’t clearly as far as the Federal Law is concerned. It is left to the individual states really the resolution of the problems. And it provided eventually if a state asks for an interstate enforcement conference and there it wasn’t said what law should be applied here, or what rule should be applied in this instance. So, it was all left up hanging in the air and thankfully, this is a whole drawback of these interstate enforcement conferences. They haven’t worked and I will indicate why they haven’t work. But be that does it may, we respectfully submit here that this is a complete -- this is really the controversy between sovereigns as I have repeatedly mentioned that the controversy here in this instance which really pertains to the use of water. And if we have such a controversy pertaining to the use of water, Mr. Justice Brandeis here speaking for this Court in the Hinderlider case which we have quoted in our brief said the following: “For whether the water of an interstate stream must be apportioned between the two states as accretion of federal common law upon which neither the statutes nor the decisions of either state can be conclusive. Now --
Warren E. Burger: He was speaking there of course of the statutes of the state not of federal statutes.
Fred F. Herzog: Correct, Your Honor. But to that, there is another point here. It refers here characteristically his authority to this case of New Jersey versus New York in which actually that -- it was really New York City in which actually New York City dumped its garbage into the ocean and there the garbage was deposited if there was an ill wind on the shores of the State of New Jersey and there were federal laws in existence. They were -- walked on the Harbors Act of 1899 was at this time in existence. The Rivers and Harbors Act was in existence and actually the Harbor mess of New York at that time gave to the City of New York the expressed permission to dumped in that places where they dumped. Nevertheless here, this Court took a jurisdiction and this Court decided here in this particular instance that the action was improper. I might say here that much is made by the defendants of the fact here. That there is that Federal Water Quality Act of 1965 or the Federal Water Pollution Control Act which provides for an enforcement conference and the -- a remedy by the Attorney General of the United States if requested by the Administrator originally by the Secretary of the Interior, now by the Administrator of the Environmental Protection Agency. First of all, let me emphasize that this remedy is not the remedy which is even to the state. It is a remedy which is solely in the discretion of the Federal Government. And during 22 years, there was one single case where the Attorney General actually utilized that remedy, apparently, wasn’t asked here either by the Secretary of the Interior or by the Administrator of the Environmental Agency. And what did this administrator say about the effectiveness of that remedy which is supposedly and allegedly provided here in the Federal Law. This simply state that you didn’t -- it didn’t work at all. We have pointed it out in our brief. I want to quote in a letter to Representative Albert, the speaker of the House, he said, “These major score of pollution control of interstate waters have not proved sufficiently strong and and affect people.” Now, we are not really the persons who say that these remedies have not proven effective, it was the U.S. Senate, who so held on November 2, 1971, that the barely three months ago. There on November 2, when they passed unanimously 86 to nothing, the new act, the house hasn’t take to ban it. They are the Committee on Public Works after two years of study of the Federal Water Pollution Control, go over them and I’m quoting, “concludes that the national effort to abate and control water pollution is inadequate in every vital aspect. Rivers, lakes and streams are being used to dispose of man’s waste rather than to support man’s life and health. And the use of any river, lakes, stream or ocean as a waste treatment system is unacceptable. And they said this was due to the time schedules for abatement are slipping away, because of failure to enforce lack of effluent controls and disputes over federal state standards.” This is a work, I might say of Senator Muskie who reported here this Bill in behalf of the Committee on Public Works. Now, what are the effects hereof the Michigan and State Enforcement Conference? It was the State of Illinois as the only state which in 1967 asked for that convening of that conference because we were eventually afraid of these wastes which come every day into the State of Illinois. We were afraid because all our efforts would be set to not and would be futile if we couldn’t act here in this instance against the neighboring states. And therefore, we asked for the convening of the conference. This is unlike, I might say, Ohio versus Wyandotte where there was at Lake Erie Conference which was in existence only for one year before the suit was filed. In 1968, the first conference met. There were high sounding declarations of that -- the state should cooperate in the pollution control abatement programs, deadlines were set, operations schedules provided. But what came of it? In 1969, the second conference met. And again there were broken deadlines. Some of the municipalities didn’t even start. As a matter of fact, one of the municipalities here involved has a 1967 deadline to the goal to enlarge their sewage treatment facilities, it has still not complied with these schedules. In 1970, the third conference met and it meant significantly in the City of Milwaukee because the Chairman of the Conference who is a federal official turns to the Representative of the State of Wisconsin and I’m quoting what he said, “But the point is that the biggest city in US state, Milwaukee wounded discharges into Lake Michigan. The water that we have a real high priority to protect is in clear violation of this conference recommendation. They are more than two years late on disinfection of the effluent and the lack of putting out this disinfection means that pathogens go into the lake. Now, these are the bold facts as I see them. The largest city in this state is not disinfecting its effluent. Well, then be learned this -- (Voice overlap)
William H. Rehnquist: Mr. Herzog, doesn’t the State of Illinois have any remedy under the existing federal law for these broken deadlines?
Fred F. Herzog: No, we have no such remedy. We can’t go to the federal conference, we can’t eventually ask for a hearing board but then after the hearing and by the way, I might say that contrary to what the state and in the respondents’ brief, we would not have a remedy under the Administrative Review Act because under the Administrative Review Act, such remedy would not be in existence if a decision is made by a representative body. I think it is Section 7 of the Administrative Review Board. They would not have a remedy. As a matter of fact, we have no remedy under the State Law unlike Ohio versus Wyandotte. We could not go into the State of Illinois. Yes, we could sue them under a long-armed statute. How are we going to enforce particularly in an injunctive decree against Milwaukee, against the sovereign agencies of another state? Yes, they recognize. It’s the same is to -- with the Federal Court, we do not qualify as a citizen under the diversity proceedings which is recognized also by this Court in the Wyandotte case. We could not. Yes, we could go as suggested and I can only take this suggestion almost that procedures that we should go to the Department of Natural Resources of Wisconsin and ask for a relief. This is if you would say here, the sheep should go to the wolf and ask here to meet our justice amongst them. This is the very person, these are the various agencies which tolerate that condition here and what did about -- by the way as far as the enforcement conference is concerned, what did Wisconsin save in the conference may emphasize, but you have changed these deadlines unilaterally. They said, “Well, it’s true, we did so but we consulted the Federal Water Quality Administration and then they say here, and this is characteristic, this is a quotation from their report to the conference, “It should be further noted that there are no published rules or regulations or guidelines that have been promulgated by the Department of the Interior to give specific guidelines and details on how this whole area of joint enforcement of standards and recommendations should be administered. We consider the lack of such rule to be a substantial weakness in conference procedures.” That’s their own words! They really denigrate here the whole procedure as such and nothing is left. If it please this Court here, this is not the question as I have said of property, this is a question literally and this is not high-sounding oratory. This is a question of human lives which are involved. We might be saying, we are equally concern or the lives of the citizens of Wisconsin but we have noted about these humane concern for the Wisconsin residents cannot be translated by us into redirection but it can be translated by us into redirection as far as residents of the State of Illinois are concerned. And we are under a duty under Federal Water Quality Act, places a responsibility for action foremost in the states. This is a constant theme of the Federal Water Quality Act in the policy statement and even in the statement where -- which deals with the enforcement provisions, which deals with the conference. There it says, “State actions shall not be displaced by an action of the federal government unless the Court do what they have been issued and of course, never been issued. So, under these circumstances, where there is no other remedy available to us, at least no other reasonable remedy and where we surely are not going to subject our sovereign interest to an administrative agency of the State of Wisconsin. And where sovereign interest clash, I must respectfully submit that the exercise of original jurisdiction is the only thing which is left. Everyday which goes by cause to see irreparable harm and to postpone the deadlines simply would not do anymore. We have waited three years, four years, now five years and by the way the situation still hasn’t been corrected. In the latest brief of the Milwaukee Sewerage Commission on page six, at the bottom of the page, they talked of one of their treatment plants, let’s say primary treatment is operative of the other. You know what this means in the parlance of the health authorities. Primary treatments means that the solids merely are taken out which is nothing --absolutely nothing -- as far as health is concerned. Secondary treatment is demanded when at least 90% -- 85% or 90% of the solids are removed and nowadays, we have recognized that even secondary treatment in many instances is not sufficient. I respectfully urge this Court here to exercise jurisdiction. Unlike Wyandotte versus Ohio, this is not where a private individuals are involved. This is a suit between sovereigns and unlike Wyandotte, no other remedy at least attach it to remedy is available to the State of Illinois which will prevent the irreparable harm.
Warren E. Burger: Thank you, Mr. Herzog. Mr. Slater.
Harry G. Slater: Mr. Chief Justice, if the Court please. I do not propose to get into any controversy with the State of Illinois and the factual demonstration. We may differ structurally but I do not think this is the form where that should be presented. This matter I think is also been somewhat exaggerated in the presentation that has been made. And we ought to very briefly look at the background here to ascertain just what the situation is. I should like to also say in defense of my city, we are a progressive, we are a good city and we respect the rights of our citizens and the rights of other citizens and we do is absolutely at our disposal to make that situation obtained.
Warren E. Burger: What are about these deadlines Mr. Slater?
Harry G. Slater: The only deadline that I’m aware of Mr. Chief Justice is the deadline that was promulgated by the State Department of Natural Resources. I believe that was promulgated in 1970 and they reviewed this situation in an impartial, not controversial partisan manner and determined that the City of Milwaukee shall have until 1977 to make these broad and overwhelming changes in the sewer system and in the manner of handling sewage. And I should like to state here that the State Department of Natural Resources is created under Wisconsin Statutes. It is a quasi-judicial body. It is impartial. It has the same respect for Illinois as it does for Wisconsin. And this body had promulgated orders after making findings and has said what I’ve just stated mainly that we shall have until 1977 to make these effective changes.
Warren E. Burger: Well, that’s of course the unilateral action on the part of the Wisconsin. Were there any deadlines in the interstate conference?
Harry G. Slater: Mr. Chief Justice, I know of none. I do not even know that Illinois complained against that deadline. And I should also like to state that this conference came about in 1967, the governor -- the then governor of Illinois asked for this conference from the United States Secretary of Interior and this conference was called and you have four participating states. You had Michigan, Indiana, Illinois and Wisconsin. And they all came under cooperative basis to effectuate a remedy for this important problem. Now, this problem didn’t come overnight. It came over a long period of years and by the same token, it cannot be solved overnight even though every municipality, every state, and every individual would like to solve the problem of pollution in a quick, and easy and effective manner.
Speaker: Mr. Slater, that was 1967, you said?
Harry G. Slater: The conference was first asked for, Mr. Justice, in 1967. It was convened in 1968. In January 1968, it went after a couple of months and as a result of that, the State Department of Natural Resources and I don’t think it is fair to make this an agent of the City of Milwaukee. It is an administrative agency of the State of Wisconsin.
Speaker: Let me get back to my question. That was 1967?
Harry G. Slater: That is correct.
Speaker: No, you were preparing I think 1977 as a date. That’s a full decade.
Harry G. Slater: Let me explain Mr. Chief Justice why that is required. I think it also demonstrates very effectively that the great pressing circumstances which have been dramatically displayed here today are not exactly in that sense but let me get to this point. What is involved in this correction procedure? The direction of this order of the case is that the City of Milwaukee would have to separate its combined sanitary and storing sewerage. Now, this as we understand from our own engineering estimates and we think they’re fair would take overall approximately a half of billion dollars. $300 million would have to come from local taxation; $200 million would have to come from property owners who would have to make the necessary and essential improvements that compliment that which the City of Milwaukee does. Now, it does not take any stretch of the imagination that no municipality today or perhaps in the immediate future is going to be in the position to formulate a financial program that is going to permit these overwhelming expenditures. We’re doing our job. We’re trying to meet the situation. But how do you waive $300 million to local taxations when you are already burdened with the day-to-day operations of your own municipal government and with the social programs essential to vary -- to a number of people in order to carry on your municipal operations. So, when you look at that situation and recognize that that type of money and the burden of doing the mechanical work itself and the necessary manpower which will accomplish it is so great; I must respectfully suggest Mr. Chief --Mr. Justice that 1977 does not appear to be unreasonable. Now --
Thurgood Marshall: How much has been done into the five years? You’re half way, aren’t you?
Harry G. Slater: What is that?
Thurgood Marshall: You’re halfway along your five years.
Harry G. Slater: Yes, that is true. What is now being done and there’s been some concept of -- (Voice Overlap).
Thurgood Marshall: Well, let me change my question, what has been done other than talking and planning?
Harry G. Slater: The preparations are going forward. I must confess that the problem of money is so great that we cannot have just a practical answer to that question. I wish Mr. Justice we did.
Thurgood Marshall: Oh, yes! I think you could, by honest, answer nothing.
Harry G. Slater: Nothing from a financial point of view except that day-to-day --
Thurgood Marshall: Well, am I correct on that?
Harry G. Slater: I would have to confess that we have not done much more than the day-to-day sewer construction which already constitutes a financial burden. Now, let me also point out this. There are other practical considerations. Assume you have a special master appointed. We’re not determining whether or not there should be collection. I think that’s already been determined by the orders of the Department of Natural Resources. What is this special master going to address himself to? He is going to have to address himself to the very problems that we’re talking about because in order to make an -- we would want to comply with an order. But how does a city of the size of Milwaukee with a substantial debt already and with a maximum debt fixed by the constitution go out and raise this kind of money? What we have to do is look to the federal government for assistance, for cooperation, and for grants. Now, short of that, I don’t know where a special master would be able to accomplish anymore, if this was a case to determine what are the degree of pollution, what is the city’s reaction to it. Perhaps the special master could play a role. But let me say this, the Department of Natural Resources have issued these orders. We have not appealed for them. These are your stand. There’s been no delay. If we were looking for a delay, we could have had reviews of these orders but they have not been submitted on that basis. They’ve been accepted by the City of Milwaukee in good faith and we do propose to act on it.
Speaker: As you know, years ago, New York took it -- New York City took its garbage out to the sea and there out and dumped it and then tides brought it in to New Jersey as pretty much what Milwaukee is doing to with Illinois, is that it?
Harry G. Slater: I would not suggest that that is the situation. We do have --
Speaker: Or sewage not garbage but I mean, it’s the same --
Harry G. Slater: Well, Mr. Justice, we do what I think is a good constructive job. We’re not getting all of it, I must confess. And the problem is with that access, but I do not want to demean our own efforts. We have an excellent sewerage commission that does a marvelous job.
Speaker: I’m sure you do. I’m not -- my question was merely this, court just recommend that Illinois go to the Wisconsin Courts?
Harry G. Slater: Yes, I would recommend first this, if the Court please.
Speaker: What do you say about the collecting case, our collecting case.
Harry G. Slater: If the Court please, I think this is somewhat different. You have to bear in mind --
Speaker: That was the case where Wisconsin was not wanting to go into the State of Illinois, right?
Harry G. Slater: Well, I understand that, I have been on the other side of this question in water diversion. So, I realize that there may be different sides but in this case, I do not think that that is true. I think there’s one side and I’m trying to explain to the Court just what it is. And that side is simply this, you did have a conference. The Congress has set up the machinery for this conference. It was held in good faith. Now, if the Department of Natural Resources after this conference and after all of the reviews had done nothing, I would say, “I would have reason to complain.” But if the Department of Natural Resources has already demonstrated some partiality and it’s good faith, how, by issuing the very orders that had been issued against the city of Milwaukee, against Racine, against Kenosha and against others.
Speaker: As far as the conference goes, I follow up all of them. I think you’re about 57 up to last year and then I gave up because there’s many other things happening but I didn’t find that one that had resulted in anything being accomplished. Did anything happen do you know. Have you followed those 57 -- (Voice Overlap)
Harry G. Slater: I have not. I am concerned about our own. I think that we accomplished something.
Speaker: Where is the (Inaudible) in the conference? Isn't it more or less than just a get together and having a few things to talk of things over?
Harry G. Slater: I do not believe so for this reason, Mr. Justice. The State Department of Natural Resources can impose very fines against any violations.
Speaker: Well, I’m not talking about that. I’m talking about the interstate conference.
Harry G. Slater: I said -- I must confess I did not participate. I don’t know how they were run. I do know the results of the conference was the promulgation of orders that I’ve already alluded to. And this is all that I can say about them because we are not the State of Wisconsin and I say this because Illinois have argued that this is a contest between the State of Illinois and the State of Wisconsin. They’ve done this and trying to get this case away from the very excellent constructive rule that was applied on the Wyandotte Chemicals case. But that’s not the fact. Now, why doesn’t Illinois bring Wisconsin -- and the State of Wisconsin in speaking up? And this is my own observation. They did not bring them in because they found that the State of Wisconsin was cooperating very beautifully with Illinois. They were issued -- they had this conference. They did issue these orders. These orders are part of to the municipality. Now, what more can Wisconsin do? Wisconsin is here --
Warren E. Burger: Are you suggesting Mr. Slater that there is no barrier to joining, appropriately joining the State of Wisconsin here?
Harry G. Slater: Mr. Chief Justice, I am not permitted to speak for the State of Wisconsin. I do not have that right. I would say this that the Illinois shows the parties that they wanted to bring into this action. They chose not to bring -- of the State of Wisconsin perhaps for two reasons. I can offer a second reason; they may have felt that if the State of Wisconsin came in, there might be some kind of a thrust plan against some of the municipalities in Illinois and maybe that was one of the reasons. I am purely conjecturing on that point. But I do say that when the argument is made here that this is against the State of Wisconsin, it is not! It is against municipal corporations and we’re just one small step away from a private corporation. And so, you have exactly the same situation here as you have on the Wyandotte Chemical case. I see no distinction and what was true in the Wyandotte Chemical case is equally true here. There is no difference.
William H. Rehnquist: Mr. Slater, on the failure to join the State of Wisconsin, one reason might be that they thought Milwaukee and Racine and Kenosha were dumping pollutants into the lake and the State of Wisconsin wasn’t minding it.
Harry G. Slater: Well, that is correct. The State of Wisconsin was not -- the state of Wisconsin was issuing orders which was trying to correct the situation but having put Wisconsin all of these litigations for the moment; does that -- this bring our situation squarely within the Wyandotte Chemical case which was issued just about a year ago? And there is nothing new in this situation which should emphasize this case as a distinction against the decision that was made in the Ohio case. That is our position and we have tried to present in a straightforward manner. We recognize that we are -- the -- we have -- had orders issued against us. We do not try to mitigate that situation. We recognize that there is a problem. We are working on meeting that problem. We have a terrific financial burden that we have to work out because no city across the nation today with all the needs of the city and with the great pressing demand for tech sharing is the position to meet this kind if an overpowering burden. While that may not be excused to pollution, there is a practical situation that the special master would likewise have to deal with because this will not go away with the waiving of the magic wand. The problem is there. It’s got to be solved. We’re doing our best to solve it
Warren E. Burger: Mr. Slater, if the States commission in Wisconsin felt exactly the same way this whole problem as the State of Illinois feels about it, what is the scope of the power of that commission to direct Milwaukee and the other municipalities to stop dumping sewage or what? Could you suggest what their power is about?
Harry G. Slater: Mr. Chief Justice, are you speaking about the State Department of Natural Resources?
Warren E. Burger: Yes.
Harry G. Slater: I would think that the State Department of Natural Resources felt that we were not showing good faith and the response which they had a reasonable right to anticipate. They could go into Court and deal with us accordingly. I’m satisfied too that if they felt that way, they would not hesitate to do it not withstanding Illinois’ claim that this is a totally partisanship arrangement.
Warren E. Burger: Specifically, could they just simply say on January 1, 1973, no discharges into the Lake of Michigan will be permitted. Solve your problem in your own way but no discharge!
Harry G. Slater: I assume they could say it but I assume that they’re also practical engineers and they know that by saying it this cannot be accomplished if so. I wish it could. This is not the ordinary problem.
Warren E. Burger: I’m not talking about the practical side. I’m just trying to get the scope of power.
Harry G. Slater: Yes, Mr. Chief Justice. I assume that they could do that under the broad powers that they have on the Chapter 144 of this Wisconsin statute. Yes, I would have to answer yes. At least, that’s my observation.
Potter Stewart: But you said they have to go into a Court to enforce any.
Harry G. Slater: That is correct. Mr. Justice because the State Department of Natural Resources is not a judicial body, it is a quasi-judicial body. It is primarily administrative and would have to act to the Attorney General of the State of Wisconsin.
Potter Stewart: And have to go into a Court.
Harry G. Slater: That is correct and may I also add --
Potter Stewart: And where you could interpose of -- driving defenses, I suppose.
Harry G. Slater: Well, if you have that view, we’d accept it. The view that we have mentioned here today was the practical ones.
Potter Stewart: Impossibility would be one, wouldn’t it?
Harry G. Slater: Well, that is an equitable consideration. I assume that you are going to Court to try to get an injunction against us. This would be within the broad scope of the equitable powers of the reviewing tribunal. So, that the Courts are there and may add this, I don’t think that Illinois need have any fear. We have very excellent trial courts and we assume the same would be true if we had to go into Illinois. I see no problem there.
Warren E. Burger: Thank you Mr. Slater. Mr. Herzog, do you have anything more?
Fred F. Herzog: Just a minute.
Warren E. Burger: You have four minutes left.
Fred F. Herzog: Mr. Chief Justice and may it please the Court. About these huge expenditures of money, let me quote only here one instance from the conference, the third conference which took place in 1970. There the question arose how much it would cost to disinfect the sewage, meaning get the bacteria out, the deadly bacteria out from the sewage? And the man that have presented the Department of Natural Resources said, six million dollars. Where one all the conferees said, “My God! Six million dollars and you don’t do anything about it. And Mr. Stein, who was in charged of the conference said, “Yes, and who has to be spending it?” That is the point Mr. Fenger (ph). If the people in the area feel perfectly comfortable paying $30.00 a month for an electric bill and $20.00 a month for a telephone bill and get excited when they have to pay five or six dollars for a water bill and treat their effluent. We are going to still being troubled and this is a basic problem. And this is my -- Your Honor on the situation here, first of all, let me say, and only and I don’t obviously attempt to round the affairs here over the State of Wisconsin. But Illinois just bought it. $750 million for the cleaning up of everything for -- while trying to get air and water pollution cleaned up. $750 million -- it seems to me that six million dollars is not too high a price in this instance.
Potter Stewart: That estimate was for what – Milwaukee, Kenosha, or Racine or?
Fred F. Herzog: Milwaukee alone -- Milwaukee area to clean it up. And I might say here in this instance, unlike the Ohio case, where there were other remedies available, where the State of Michigan had filed -- without avoiding Michigan, the suit had been pending and the Court Decree was issued. Here I might emphasize again there is no other possibility and the damage, we cannot wait frankly until 1977. I cannot say how they will raise the money but they haven’t done anything for five years. And if they do it, they have it in the drawing states and we cannot simply wait in this instance. The public health cannot win.
Speaker: Yes, the Illinois then involved in other conference proceedings under the federal act?
Fred F. Herzog: No, this is the only the conference proceedings.
Speaker: It’s going on for five years?
Fred F. Herzog: Yes, we have asked for it and Mr. Justice Douglas I might state here what --
Speaker: I might be -- you might be encouraged to note that some of them that I was following last year have gone on for eleven years with nothing happening.
Fred F. Herzog: Well, I might say that the most direct example is a (Inaudible) conference which was called in August 22, 1957 and I don’t have to inform this Court which is much more expertise in this instance what does happened in this instance. This conference hasn’t left anything and we are in badly need of help.
Warren E. Burger: Thank you, Mr. Herzog. Thank you, Mr. Slater. The case is submitted.