Warren E. Burger: We'll hear arguments next in Babbitt against United Farm Workers. Mr. Lee, I think you may proceed whenever you are ready.
Rex E. Lee: Thank you Mr. Chief Justice and may it please the Court. This is an appeal from a judgment of three-judge District Court, holding unconstitutional in its entirety, Arizona’s Agricultural Employment Relations Act. The invalidated statute is patterned after the National Labor Relations Act, that is it guarantees employee organizational rights, provides for collective bargaining, secret ballot, election process. It prohibits 20 separate unfair labor practices, establishes an agriculture labor relations board, gives that board authority to adopt rules and regulations and generally to enforce and implement the policies of that Act. At the time that this case went to trial, the parties stipulated to 20 cases in which the Act had been applied in some way. Eight of those involved secondary boycotts. Six were election proceeding and six were proceeding against employers because of unfair labor practices, employer unfair labor practices as defined by the Act. The focus at the trial was not on these instances of enforcement for reasons that I'll develop in just about two minutes. Rather the great bulk of the evidence at the trial concentrated on expert opinion concerning how the Act would probably be interpreted and how it would probably operate. The principle issue at the trial was how the election provisions would be applied and how long it will take to hold an election under the Act in the view of the --
Warren E. Burger: Beyond that didn't it hypothesize the number of probable likely situations?
Rex E. Lee: Yes and how the Act would be interpreted, given those situations.
Warren E. Burger: First hypothetical facts and then hypothetical or assumptions about what the Act meant?
Rex E. Lee: Precisely Mr. Chief Justice it was built on two hypothesize, one was factual and one was legal, neither of which we contend was within the preview of District Court. Armed with that kind of a record, the court specifically found constitutionally defective, five specific provisions of the Act, parts of four sections out of some 16 of the Act consists of, including one out of 20 unfair labor practices and from this determination that five provisions were unconstitutional, the District Court invalidated, struck down the entire statute. The points of disagreement between the parties are in this case are far more numerous than this Court is accustomed to dealing with. Indeed, there isn't even an agreement between the parties as to what the number of questions presented before this Court is, but careful analysis of those briefs reveals that there are at least six propositions advanced by the appellants concerning which the appellees have either not joined issue at all or the joinder if attempted hasn't really meshed, so that the point is effectively undisputed and fortunately those six propositions undisputed and undisputable are dispositive of the case before this Court, as a consequence I believe that the most helpful way that I can use my scarce oral argument time of this afternoon is – yes?
Byron R. White: Mr. Lee we noticed how prompt your prior counsel were?
Rex E. Lee: Well, I know that Mr. Justice White and I realize no constitutional obligation, take all my time, I appreciate it. But when you are dealing somewhere between seven and ten questions presented and each of the ten raises many sub issues, there is some problem of allocation, no matter how one attempts to be prompt, which I assure you I will do. So I'd like concentrate on these six propositions. The first two concern whether this dispute really amounts to a case or controversy at all. The appellees lay great stress on the enforcement stipulation. There are 20 instances in which the Act has been enforced, but the fact that is not disputed is that of the five provisions held unconstitutional by the District Court, namely the sections dealing with elections, untruthful publicity, binding arbitration, free access to employer facilities, and the provisions making violations of misdemeanor, not one, not a single one has ever been applied to any of these plaintiffs. There is, indeed the only section that's ever been applied to anyone of those five is the election provision and that's not to these plaintiffs. Now there is an attempt by the appellees as to one of these provisions, sub section 8 of the Unfair Labor Practices, the one that prohibits untruthful publicity to join issue but they don't really do so. The fact of the matter is that in one case only, case number two, the Safeway case, there was an allegation in the complaint of a violation of sub section 8, but the Superior Court, the Trial Court made a preliminary determination, a threshold determination that the union's conduct in that case was a sufficient compliance with sub section 8 and as a consequence it has never been applied and we are left with this fact that of all of those 20 instances not one has ever been applied to these plaintiffs. The second point of no real dispute is this and it concerns the law dealing with this kind of case. I know of no case and in the six years of this litigation our opponents have not been able to suggest any in which this Court has approved the consideration in its entirety of a comprehensive regulatory statute whose provisions raise a variety of separate constitutional questions in advance of and in the absence of the application to those provisions to particular individual.
John Paul Stevens: Mr. Lee, can I just ask you about your problem here? Supposing the election procedure is so cumbersome and the timing is so bad that they can never have an election, could they ever challenge it? Because the whole hypothesis on which their argument is built is that they can never get an election in any event and I think your argument is as well that's just too bad, we got an unconstitutional statute here that can never be challenged?
Rex E. Lee: Well, let me answer it in two parts Mr. Justice Stevens. That is a -- that is an issue of course that is applicable only to the election procedure and not the entire Act.
John Paul Stevens: Right but rather important --
Rex E. Lee: But even so I would feel much more comfortable if at least they had tried to hold an election and there had been some demonstration some facts on the record that in fact it takes too long to hold an election. Here there is simply an assumption that it takes too long, an assumption that is entirely unfounded.
John Paul Stevens: That goes to the merits of whether they are right or not, but for purposes of standing in case or controversy, don't we have to assume that there is merit to their argument?
Rex E. Lee: Yes, we certainly do, but my point I think is nevertheless valid, that at the very least with regard to case or controversy as it applies to elections, that you have to at least have tried and at least to have shown that in fact there is some -- on the merits the election issue depends on delay.
William H. Rehnquist: Mr. Lee what issue is it on the elections where we expect the difficulty in having? I mean, Arizona didn't have to pass a law, give them any election at all?
Rex E. Lee: Of course not and the only -- in the final analysis we point out in brief the only thing that they are saying is that whereas before Arizona had no election, now it has an election process, but what they are really complaining about is it Arizona did not go far enough and provide enough protection for associational interests as perceived by the appellees and there is this case from the Eastern District of Virginia that says very clearly, that there is no obligation on any state to do that.
William H. Rehnquist: Almost -- International Labor Relations that was constitutionally mandated if one would say that?
Rex E. Lee: Well, but you have problems even there, because the District Court and the appellees have both made the statement, this is their language that the provisions of the National Labor Relations Act dealing with elections and provisions of the AERA dealing with elections are virtually identical.
John Paul Stevens: Isn't there a difference that the election procedure makes it unlawful to proceed without an election, in other words to have a bargaining representative voluntarily recognized?
Rex E. Lee: No, I don't think it ever says that Mr. Justice Stevens. That's been a point of dispute between us and the Appellees all throughout this entire procedure. I find nothing in this statute that says it cannot have voluntary recognition. There is dispute about the bargaining order provision and there is dispute about the volunteering, but that's what brings us back. We ought not to be here talking about issues of Arizona Law and that's really what is involved there, these issues of Arizona Law.
John Paul Stevens: Yes, the record doesn't tell us whether any, any attempt by a bargaining representative who had not been selected by means of an election was nullified because he wasn't elected?
Rex E. Lee: [Inaudible]
John Paul Stevens: I see so that it's hypothetical in that sense then?
Rex E. Lee: This case is here far too soon. We pointed to the Watson and McAdory cases in our brief. Those cases are squarely on point. Those involved comprehensive statutes. Coming back Mr. Justice Rehnquist to your analogy to the National Labor Relations Act, that's the analogies, both -- this is a fair description of both of those statutes. Each of them consists of organizational guarantees, collective bargaining guarantees, prohibition of unfair labor practices, the establishment of an administrative agency with power to implement the Act. Now that's both statutes in a word. It is unthinkable that this Court would have permitted any court, Federal or State to start at the beginning of the National Labor Relations Act, wade through all of its probations, declare five parts unconstitutional when none of them had been enforced as to any of the plaintiffs and then based on that kind of determination, hold the whole statute unconstitutional. Now there are statements coming out of this Court condemning that kind of practice, reaching all the way back from Justice Holmes day to the opinion says February 20th, but I was cautioned by the Chief Justice that it really should say February 21st. Mr. Justice Powell's opinion for the Court this morning in Friedman versus Rogers, it was the same problem. These people who were the commercial optometrists said we fear that we can't get a fair hearing before a body that is composed substantially of the non-commercial optometrists and Justice Powell acknowledged that they were entitled under the Gibson and Wall cases to a fair hearing, but then the opinion goes on to say in both Gibson and Wall however disciplinary proceedings had been instituted against the plaintiff's and the courts were able to examine in a particular context the possibility that the members of the regulatory board might have personal interest that precluded a fair and impartial hearing of the charges. In contrast, Rogers challenged to the fairness of the board, does not arise from any disciplinary proceeding against him. In a word, election cases -- the constitutionality of the election probations ought to be decided in election case. At least Mr. Justice Stevens, we would then know if in fact there are problems of delay. Access to employer facilities ought to be decided in an access case and unfair and untruthful publicity ought to be decided in a case that at least involves union publicity.
John Paul Stevens: I am still puzzled, I have been troubled in the past about procedure for reviewing elections under the National Labor Relations Act. You got to win the election and then have a challenge. Supposing they are holding election, they loose, what do they do, how do they get it reviewed?
Rex E. Lee: Well I think that at that point at least you would have established factually that there was a delay problem if there is a delay problem and I think at that point you can come into Federal court. I will grant you that the election cases, the election cases do present a unique situation, but here where you've never even tried these, where there is nothing anywhere that shows in fact that there is delay and where we vigorously dispute that there is a delay problem and I'll develop that in just about two minutes. This is not the kind of case that the Court ought to be deciding --
John Paul Stevens: But you would say for standing purpose if they had requested an election and some how or other they didn't succeed with it, that would solve the problem?
Rex E. Lee: Well it would if in fact you could show that the factual premise on which your attack is being based was in fact correct. I think the case or controversy would require at least that.
John Paul Stevens: You still saw a little bit like you say, you got to win on the merits to have a case or controversy or maybe you don't mean that?
Rex E. Lee: This is another of those instances in which there is a very close relationship between the merits and case or controversy, but I do think that you need that, do more than just make the formal application. I think you'd need to show that the factual predicate of the constitutional issue that you are raising is in fact there otherwise you are bringing the Federal machinery into play when it may not make a difference. That of course is also closely relates to the abstention question. I'd like to turn now to a closely related issue which is the severability question and here the dispositive reality is that that have not been disputed are two. The first is that the test for severability as it has been announced in this Court is the Champlin test that is cited in page 77 of our brief unless it is evident that the legislature would not have enacted those provisions wherein its power independently that which is not, the invalid part maybe dropped if what is left is fully operative as a law. As I read the modern cases dealing with severability, including most importantly Tilton and Jackson that is the leading statement of the law of severability coming from this Court at the present time. That case is not acknowledged. It's not even cited by our opponents and I submit that the reason is a recognition that, that test cannot be satisfied in this case. Applying that test it is nothing short of absurd to say that Arizona's judgments for example that there should be collective bargaining for Arizona, for agricultural labor or that the union should not be permitted to picket the homes of agricultural workers or find one of its members because it gives testimony before the board or that an employer should not be permitted to dominate a union or contribute financial support or discriminate against an employee because of union activities and many others in any way depend on whether there's been an election or whether compulsory arbitration is constitutional or whether there is access to employer facilities. Regardless of how you come out on those five issues, the Arizona legislature has concluded that Arizona needs an Agricultural Labor Relations Board and that that board needs the authority to prohibit 19 out of 20 un-invalidated, unfair labor practices. The magnitude of the district court's error is illustrated by the fact that Arizona is now prevented from controlling unfair labor practices that non even Appellees contended were unconstitutional including irony of all ironies, employer unfair labor practices. Look at the enforcement stipulation. Just about a third of those cases were cases in which the employer had discriminated against his employees because of their union activities. My client, the State of Arizona has a legitimate interest in preventing that kind of employer conduct and in those instances where there has been employer retaliation in bringing into play on the employee side of the conflict the way to the state to prevent that kind of employer conduct and the same in the event that the union has taken improper action against its own members. We come now to the most important subject of question and that is the constitutionality of Section 1389 dealing with elections. The district court made it very clear that this was its pivotal holding, the most important subject of holding and this is one of the provisions that was invalidated on the basis of the “evidence.” But the evidence that the court found relevant was not evidence developed on in any actual case or controversy. As the Chief Justice pointed out it was based on a twin hypothesis how the Act would work and how it would be interpreted and it was that hypothetical, not any of the such election cases that have actually been held, it was that hypothetical that was held unconstitutional. Now even aside from the obvious case or controversy problems, with that kind of approach what substantively was wrong with this election procedure and the thing that was wrong with it is that in some instances it might be impossible, the district court hypothesized, to hold an election during the employment peak. Now there is no dispute that the problem of how you solve elections during an employment peak is an important one. It is also one whose optimum solution is not readily apparent. The National Labor Relations Board has adopted one solution to that problem. The California Agriculture Labor Act has adopted another. NLRB solution is to hold the election during the next employment peak and the California procedure or the California solution is to hold the election rather quickly to decide only the question of representation and then once that's decided to defer all other issues until after the election. There is absolutely no authority except the opinion which we ask this Court to reverse that has ever held that the selection of either these solutions raises significant constitutional problems, none. In that respect alone the district court's decision is surprising enough, but the absolutely incredible feature of the district court's holding is that it has invalided an election scheme that permits and indeed anticipates the adoption of either alternative according to the needs of the particular case. That has never been -- it has never been disputed and even if you assume that one of those or the other could be held unconstitutional, even as a matter of abstract theory, the position cannot be taken that a procedure which permits the adoption of either according to the needs of the particular case is unconstitutional. There is a statement in the motion to affirm to this effect that the Act must be nullified in all its provisions and returned to the legislature to strike a new balance. I find that statement absolutely intriguing. What new balance is to be struck? As I read the District Court's opinion and the Appellee's briefs, the only constitutionally acceptable alternative is the California Act and yet Arizona law, it says not been disputed by our opponents permits the adoption of the Californian procedure. Now, pursuant to Justice White's urging, let me simply take about 30 seconds, Mr. Chief Justice and just observe this. First, with regard to the truthful publicity I think the Friedman versus Rogers is a valuable additional case that bears on the question of the extent of Arizona's authority to prohibit untruthful speech and I'm referring particularly to the comments on page 8 of that opinion. With regard to compulsory arbitration under the Seventh Amendment and substantive due process our opponents are virtually thrown in the towel. They have an additional argument, I'll deal with that in response, if it needs to be dealt with, I'm not sure what position they take. And finally, with regard to access to employer facilities, as we point out in our brief that depends on three assumptions. They have not disputed the fact that it depends on three assumptions and they've really only attacked one of the three, and for these and many reasons, we submit that the Federal District Court should never been involved been in this case in the first place. It committed numerous errors and most egregious of which was its deciding a dispute that it's not a case or controversy and we submit those judgments.
John Paul Stevens: Mr. Lee, I have two questions that I'd like to ask you? Does the record and I have not read this, the Enforcement Stipulation, but does that or anything else in the record tell us whether there have ever been any successful elections in which unions –
Rex E. Lee: Yes, there have.
John Paul Stevens: There have been some?
Rex E. Lee: Yes.
John Paul Stevens: But has been evoked and it's not possible to --
Rex E. Lee: That's right.
John Paul Stevens: And the second question I had, you've commented about the truthful publicity aspect of the statute. Do you have any particular response to the brief of the amicus, the American Federation of Labor and CIO about the part of the statute that prohibits a comment when there's a trade name or something like that that has -- part of the people are involved with the union and others are not --
Rex E. Lee: The Swing problem?
John Paul Stevens: Yeah, right.
Rex E. Lee: Yeah, very simply this Mr. Justice Stevens, the Swing case as you know arose in your state and it was a beauty parlor, they lost the election and then they continue to picket around the Swing beauty parlor. That we submit as an entirely different case because the pressure there was primary. It was around the target of the organizational activity and it's a very narrow opinion and Justice Frankfurter makes it very clear that that's all it applies to is the facts of that case. By contrast what we have here insofar as the second part of sub eight is concerned, is secondary pressure that is brought to bear and if the National Labor Relations Act shows us anything, it is the distinction in this respect between secondary pressures and primary pressures.
John Paul Stevens: Again it's strictly information of picketing that they're concerned about, isn't it?
Rex E. Lee: Yes, but I think, the clear message coming from (Inaudible), for example, which has no suggestion that that case was constitutionally based, is that insofar as secondary pressures if they are -- unless they go too far, that they will be upheld. Once again this is a fallback position on the case or controversy we need to know what the facts are. In the Swing, we had the actual facts of that case, but there's a distinction I submit of constitutional dimension between primary pressure such as were involved in the Swing on the one hand and secondary pressures such as they're clearly involved in that aspect of this statute.
John Paul Stevens: On this aspect to the case, going back to your whole standing problem, you do have a First Amendment issue and the argument is that the statute in effect is overbroad here, and so wouldn't under classical overbreadth standing doctrine wouldn't the standing be okay in this case as to that particular portion of the statute and if not, why not?
Rex E. Lee: Well, I don't believe that this is a proper case for application of the overbreadth doctrine for these three reasons. The leading overbreadth case is Broadrick. Broadrick says that application of the overbreadth standard depends on the mixed speech and conduct. Here we don't know what that mixed speech and conduct is and we won't know until we actually have a case that demonstrates it in the particular instance.
John Paul Stevens: Typically in an overbreadth case you have a facial attack. You never know what the conduct, the overbroad --
Rex E. Lee: You do have a facial attack, but you at least in Broadrick, Broadrick and his companions at least had engaged in the permissible scope of the activity that is, or excuse me, the prohibitable part of the activity that is campaigning for their bosses. Here we have nothing.
William H. Rehnquist: Well isn't this, for that reason closer to California Bankers Association against Schultz?
Rex E. Lee: Sure.
William H. Rehnquist: Where we refused to pass on the ACLU's claim because we said wait till something happens to you even though you claim First Amendment violation?
Rex E. Lee: Of course and for that matter, for that matter it's like Friedman versus Rogers which came out this morning and indeed in the Broadrick case itself Mr. Justice White cited from the Wurzbach, the Wurzbach case.
Byron R. White: That was the court --
Rex E. Lee: Excuse me -- -- for the court. In his opinion for the court, Mr. Justice White cited United States versus Wurzbach which says that there will be plenty of time when we have a case that actually affects someone.
Byron R. White: Do you think this is commercial speech?
Rex E. Lee: I thought about that this morning as I read Friedman versus Rogers. I don't think that my position depends on it being commercial speech but I think that they're at least first, double first cousins.
Byron R. White: It's about wages, isn't it?
Rex E. Lee: It's about wages, it's about economic issues and it's about, it's about who pays whom, how much --
Byron R. White: You don't really think, do you think to make a -- suppose I went to court and say, here's a law that says I may not speak in the following manner and I assert that I desire to speak in that manner and I think therefore I'm being restrained, and I don't want to commit a crime, I want you do adjudicate, don't you think there's a case or controversy or not?
Rex E. Lee: At that point you have to apply the court's opinion in Broadrick versus Oklahoma and that depends on several things. One is you will note that in Broadrick, Broadrick had in fact engaged in the prohibitable component and therefore you could see the mix of speech and conduct insofar as at least the prohibitable part was concerned. Secondly, there's a caution in the Broadrick opinion that if the statute needs to be interpreted by the State Court, then the overbreadth doctrine should be --
Byron R. White: So I'm talking about case or controversy now.
Rex E. Lee: I understand.
Byron R. White: Isn't that enough as I think it was implicit in Justice Stevens' questions, if it forbids you from speaking and you make the good faith of assertion that I want to speak this way and I can't unless I -- do I have to violate the statute in order to make a --?
Rex E. Lee: It would be easier to answer that question I submit Mr. Justice White --
Byron R. White: All the defendant have to say, all the Attorney General of the state have to say, well I never attempted to apply it to him, they only have to say to avoid the case --
Rex E. Lee: You go back and you pickup Coates versus Cincinnati and Broadrick versus Oklahoma and that is an issue that has bedeviled this Court. It has been to difficult to answer that particular question as I don't need to tell you Mr. Justice White.
Byron R. White: Well, I know but you then – but then you say that you're hanging most of your case around case or controversy, isn't it?
Rex E. Lee: Pretty good argument, but it is not most of the case.
Byron R. White: And then you might be hanging maybe your case around some of the other provisions, but on this provision --
Rex E. Lee: Yes.
Byron R. White: On this provision, was there an attack on the -- in the complaint on the statute?
Rex E. Lee: Oh yes.
Byron R. White: On this particular provision?
Rex E. Lee: Oh yes, with --
Byron R. White: And if they wanted to speak in this way, is the statute preventive?
Rex E. Lee: That they -- well, that I don't know that they actually allege [Voice Overlap] untruthful publicity but --
Warren E. Burger: They had hardly claim that they wanted to speak falsely on --
Rex E. Lee: Well, I don't think they would have alleged it, they would have alleged it.
John Paul Stevens: This part of the statute is limited on truthful, is it?
Rex E. Lee: Excuse me, untruthful --
John Paul Stevens: This prohibits is even truthful statements about this trade name that has people involved--
Rex E. Lee: That is correct, that is correct.
John Paul Stevens: So I'm just talking about untruthful dispute here, it's important too --
Rex E. Lee: That is correct, that is the second part and it does. My only response is that that it is a difficult issue whether overbreadth applies to any kind of case. But as I --
Byron R. White: Even if there's a case or controversy about this particular issue, it doesn't mean that there's about any other one in the case?
Rex E. Lee: Of course, of course and that's the big problem is that they've attempted to apply it all across the entire breadth of the statute.
Byron R. White: You have [Inaudible]
Rex E. Lee: Thank you.
Byron R. White: We didn't.
Warren E. Burger: Mr. Cohen.
Jerome Cohen: Mr. Chief Justice, may it please the Court. The attack which the United Farm Workers has made on this statute is in large part a facial attack for overbreadth. We alleged in our complaint that our speech rights were suppressed. There is an enforcement stipulation, which starts on page 79 and goes through page 91. This has happened to us, three temporary restraining orders without notice in the area of First Amendment Rights have been granted against us before trial. The judicial proceedings by which this statute is enforced are found on page 536 of the statute and on page 532 of the appendix rather. “Any person aggrieved is allowed to go to court and get a temporary restraining order without notice to stop speech activities.” The board and that is Section 1393 (a) and (b), that Section was invoked by a liquor store, Item 4, Item 7, Item 13, page 84 and 88 of the Enforcement Stipulation, temporary restraining orders were gotten. The rule in this, that this Court articulated in 1968 in Carroll versus President and Commissioners of Princess Anne County is that in the area of First Amendment Rights, there is no place for temporary restraining orders without notice. Rule 65 of the Arizona Rules of Civil Procedure are incorporated to apply to this statute by the face of this statute. Rule 65 provides that a counsel need -- need not attempt notice. He can give reasons why notice should not be required. We say that that's unconstitutional as applied in First Amendment areas. On page 17 of the reply brief Mr. Lee suggests that Rule 65 is not appreciably different from the Federal Rules of Civil Procedure, but the federal rules do not apply to disputes between employees and employers. The federal rules do not apply to Norris–LaGuardia -- do not preempt a Norris–LaGuardia Act, so that many kinds of injunctions against speech cannot issue under the federal rule. This rule as interpreted by the Arizona Courts allows for orders without notice.
John Paul Stevens: Mr. Cohen what happened in those three cases?
Jerome Cohen: In those three cases we were picketing. We were picketing the Gallo Wine Company in one of the cases and the Kennard Liquor Store went to court in Maricopa County, Arizona without notice to get a temporary restraining order to restrain our activities.
John Paul Stevens: What happened after they got the order?
Jerome Cohen: The order was then dismissed for lack of service. They then went to Maricopa County with the distributor, QV Distributors, and they got another order.
John Paul Stevens: -- go ahead, I am sorry I didn't want to interrupt you.
Jerome Cohen: Okay and they got another order, that's on page 88 of the Enforcement Stipulation, which restricted picketing, that order was gotten without notice.
John Paul Stevens: And then what happened to that order?
Jerome Cohen: After that order was dismissed, the case was dismissed on the grounds--
John Paul Stevens: Has there ever been an order that prevented you from picketing?
Jerome Cohen: Has there been an order that prevented us from picketing?
John Paul Stevens: Yeah.
Jerome Cohen: Of temporary length, yes.
John Paul Stevens: How long?
Jerome Cohen: Five days, four days, I don't think the length matters because in Carroll, the Court said that it's not the duration of the order that counts. In that case there was a provision whereby the order could be dissolved after five days, and the Court said it's the fact of the prior restraint on free speech no matter how long that --
John Paul Stevens: If you have a history of another three, say you get 20 more, whether you've got a TRO without notice, and you get them all dismissed as soon as you get into courts as fast as you can get counsel there, do they really have an actual inhibiting affect on your client?
Jerome Cohen: Yes, they do.
John Paul Stevens: They know they are going to win all these lawsuits?
Jerome Cohen: The order is issued. It is -- it would be contempt to violate the order until we can take steps to get the order thrown out for some reason, and we don't think that that the union or its members should be inhibited for any length of time.
William H. Rehnquist: Carroll was a parade, wasn't it?
Jerome Cohen: No, Justice Rehnquist, Carroll was a rally.
William H. Rehnquist: A rally.
Jerome Cohen: And Justice Fortas said that the facts of a public demonstration are the kinds of facts for which an adversary hearing is needed.
William H. Rehnquist: Well, isn't -- hasn't this Court said that picketing is a good deal more than free speech? In another words, that's more subject to regulation than straight out speech?
Jerome Cohen: Yes Justice Rehnquist, but I'd like to point out that the state board got an order which you'll find as appendix D to the brief, which prevents us from inducing or encouraging the employee or the manager of a retail store from removing a product. That is the language of Section 7 of the Act, which is made by Section 1392 criminal. It is criminal to induce or encourage the manager of a retail store to take off a product. If Mr. Chavez who is my client, the President of the Farmers Union were to send a letter to the manager of the Phoenix Safeway Store for example and say, “Please take off all lettuce because we are on strike at Sun Harvest,” that would be inducing or encouraging that manager to remove that product, that is a violation of Section (b) (7) of this Act it's made criminal by Section --
William H. Rehnquist: Is that in the Enforcement Stipulation that you have been referring to?
Jerome Cohen: No, but this facial attack and I think it clearly falls within the shadow which (b) (7) cast over the First Amendment. In the Enforcement Stipulation on page 80, the Safeway store did go to court and alleged violations of various provisions of Section 1385 (b). They got an order restraining certain activities. They plead Section 7. Now the trial judge in that case ruled that Section 7 was unconstitutionally vague, but the board, the Agricultural Labor Relations Board on page 81, you'll note, filed a charge alleging violations of Section (b)(6), (b)(7) and (b)(8) and they made us defend and we said it's unconstitutional, and the board said we don't have the prerogative to rule on the constitutionality of our own statute, which I think points to the fact why we're in Federal Court. We have here a problem where the board can enforce the statute against us and private parties can enforce the statute against us.
William H. Rehnquist: Well, but the boards are – it was a reviewable on Superior Court and Judge Hardy gave you some relief, did he not?
Jerome Cohen: Yes, but two years later despite that relief, if you'll notice on Section -- it's on page 85 Section 11, the board, despite what Judge Hardy did, went in to try and get another order based on Section (b)(7) again, despite the fact that a Superior Court said it was unconstitutional two years before. We argued that, but the board proceeded under the provisions of 1390 (k) which is on page 532 of the appendix and allows for orders without notice and they got the order which we have appended as appendix D to this brief. So there have been, this is not a hypothetical case, there have been temporary restraining orders issued without notice. Section (b) (8) Mr. Lee claims it has never been applied. Well if you turn to page 102 of the appendix, you'll find that a judge looked at Section (b)(8) and he looked at the union's conduct and he said we were in compliance with (b)(8). Now, I think it's tightrope walking on a verbal tightrope over a constitutional abyss to say that (b)(8) has never been applied because it has not been incorporated in order, it doesn't mean that some judge didn't look at the standards of (b)(8) and apply to our conduct and there is some pertinent language from the Chief Justice in Organization For a Better Austin versus Keefe, when we talked in that case it was a question of whether of leafleting that would tend to coerce a real estate broker because of what was alleged to be union blockbusting could be restrained. And you said that in cases of that kind there is no room for a test of truth of validity, which further distinguishes this Court in New York Times versus Sullivan, when the Court said that administrative bodies, bureaucrats, judges cannot judge the truth of validity of speech. Ever since Thorn Hill, labor speech has been protected. It's more than commercial speech, we are talking about our Rights to Associate, when we boycott we raise issues of pesticides. We are talking about whether farm workers can have a union. Farm workers were excluded from the National Labor Relations Act 43 years ago and all we have is the kind of self help tools that are implicit in a primary boycott. This statute makes it a crime for us to speak. Unless we speak -- permissible inducement of an ultimate consumer, Section (b)(8) is prohibited unless it is truthful, honest and non-deceptive, and unless it identifies the product with which we have a primary dispute. In response to your question Mr. Justice Stevens, Mr. Lee just said that it does ban some truthful speech. It bans -- it would ban a statement to say if I said, for example, “Boycott Arizona oranges, because Arizona growers have substandard labor” or “Because there are no toilets in the field,” or “Because they spray with pesticides and there is not a union contract,” I would be committing a crime under Section 1392. I would be committing an unfair labor practice that's enjoinable ex parte and without notice and Mr. Lee admits that that's restricted. That's a classically overbroad statute and the court did not take extensive testimony on it because they asked the parties to stipulate--
William H. Rehnquist: Well it's a classically overbroad statutory provision, one of many statutory provisions, isn't it?
Jerome Cohen: Yes, it is, just as (b) (7) I submit is classically overbroad as well; (b)(7) by prohibiting all encouragement. If coercive leaflets cannot be prohibited, how could something that encourage somebody to do something be prohibited, that's pure oral speech, that that language is getting at. Any discussion with the manager of a retail store is criminal activity and punishable by one year in jail and up to a $5000 fine under Section 1392. In their brief, Mr. Lee and the growers say well maybe this is severable. I don't know that it's severable because when--
Byron R. White: Once you've got a case or controversy with respect to that issue in terms of your own activity, you don't need to worry about overbreadths, do you?
Jerome Cohen: No we don't as a mater of fact--
Byron R. White: I mean if it really been applied to you and you want to --
Jerome Cohen: It's been applied to us, that's right.
Byron R. White: And if you or if hasn't been applied to you if you nevertheless have a case or controversy about it in terms of your own interest you don't need to talk about anybody else's, do you?
Jerome Cohen: Well, I think that as to the clarity of the statute, yes there maybe some other sections in which --
Byron R. White: No, I mean talking just about the speech section.
Jerome Cohen: No, that's true; I think we have a case or controversy that has been enforced.
Byron R. White: I don't think you wouldn't suggest overbreadth analysis applies to the non-speech sections, would you?
Jerome Cohen: Well, I would suggest that insofar as they reflect -- they relate to First Amendment rights whether they have to talk about -- whether we are talking about speech in relationship to a manager of a store or speech in terms of an ultimate consumer for instance the access provision, there are findings of fact on the record which the state does not like, but they do not, they should not be allowed to come here and dispute what the trial court, what the three judges found. Their own witness, for example, said that there are farm workers who live on migrant camps on company property. Judge Mickey took judicial notice of that on page 353. He'd had a case just before then when one of the growers was litigating with us about where workers lived. And what the trial court found was this statute, Section 1385(C) I believe, prohibits the State Labor Board from allowing -- from requiring a grower to give a union time, materials, information or facilities with which to communicate with workers.
William H. Rehnquist: Arizona doesn't have to require a grower to -- give any time, does it? The Constitution of United States conceivably, but certainly Arizona doesn't have to by statute?
Jerome Cohen: I think what, I think Justice Rehnquist the problem that we have with the statute is that there have been other ways of organizing workers that were available to farm workers before the statute. We could engage in economic activity, we could engage in the boycott which was outlawed. They replaced it with an exclusive election procedure which, as the court found after extensive stipulations as to peak season and after listening to the testimony of the witnesses, and after examining the stipulation, there were elections. They found that it was the, and by the language it's the exclusive means of obtaining recognition. Now, when it becomes the exclusive means of obtaining recognition and when if the court found we have a transient workforce with high turnover, we have intermittent, sporadic work it is impossible to communicate with the workers without having some access to them. I think we have here a Reitman versus Mulkey argument in that a private decision by a grower is made. He has access to the workers on his land, in his camps, he can talk to them, but the union is precluded from getting on to his property. I think that's the problem that we have here. This is like the residential community in Marsh versus Alabama. This is not like the shopping center cases. These people live there in isolation and they need to make informed decisions about whether --
William H. Rehnquist: But all the statute does is say that the grower has to give certain access?
Jerome Cohen: No, the statute says that the grower is not required to provide any time, any information, any materials or any facilities to allow the union to communicate. This is one of the differences. This Act is not by the way pattered after the --.
William H. Rehnquist: It imposes on the grower some obligation to give--
Jerome Cohen: No.
William H. Rehnquist: It powers the board to impose [Voice Overlap] doesn't it?
Jerome Cohen: No it does not Justice Rehnquist. The language is on page 515. It says that, “No employer shall be required to furnish or make available to a labor organization,” then if you read on down, “materials, information, time or facilities to enable such employer or labor organization as the case maybe to communicate with the employees of the employer.”
Warren E. Burger: What do you think it means by facilities, what do you read under facilities?
Jerome Cohen: I think in the context of this language as I think it's very well argued in the amicus brief, it can only mean a place at which we could talk to the workers. They take away our time and they don't say work time or not in time, they take no time, no facilities, no materials and no information.
Warren E. Burger: No, you just still haven't defined facilities, a building, a room?
Jerome Cohen: I think it's a place, I think it means a place to communicate with the workers in this context.
Warren E. Burger: A building?
Jerome Cohen: Yes, labor camp would be a facility.
Warren E. Burger: What if they don't have a building?
Jerome Cohen: They are not required to provide us with anything. They don't even have to give us a name, a list of the names and addresses of the employees and in a migrant situation, it will be very important for us to at least under the NLRA, for example, (Inaudible) rule gives us the name and address of the employees seven days after an election. What this statute says is you can only get the names of the employees ten days after the election.
John Paul Stevens: Mr. Cohen, I'm just following up on Mr. Justice Rehnquist's question. Supposing you just repeal the statute, would there be any, be any obligation on the part of the employer to give you any of that information or that access?
Jerome Cohen: I think in that case you would be able to engage, there would be a general trespass law that would apply, you would be able to engage in a general case-by-case analysis as to whether there was no -- whether there was or was not alternate means of communicating with the workers. I think what happens here is, this is precluded --
John Paul Stevens: Suppose there wasn't, suppose there wasn't what would be the source of any obligations, say I am employer and I don't want you on my property.
Jerome Cohen: I think this --
John Paul Stevens: How could you make the election on your property?
Jerome Cohen: I think the source would be the vitality of Marsh versus Alabama and I think that, I think that Marsh versus --
John Paul Stevens: Are there findings that all employers or these are all company towns, is there findings --
Jerome Cohen: No there is just, no there isn't. There's just a statement that they live in a labor camp on the employer's property and there are statements that it, that they are migrant --
John Paul Stevens: And you'd say that each employer therefore is like a state, so every part --
Jerome Cohen: No, no I am saying that we would then be allowed in those situations in which the labor camp was enough like the company town in Marsh versus Alabama, we'd be allowed to access in those situations. What I am saying here is that that kind of case by case analysis and balancing is prohibited to this board by this language and when the state does that I think they then intrude themselves in the process and they allow the grower who has total access. By the way this is, I'd like to just --
John Paul Stevens: Well this statute just says the board shall not order you -- order access.
Jerome Cohen: The board may not require the enclosure therefore it's up to the employer.
John Paul Stevens: Case by case analysis under Marsh against Alabama wouldn't be before the board, would it?
Jerome Cohen: No but I mean the board is precluded for making such an analysis under this language.
John Paul Stevens: Whatever it is but anyway --
Potter Stewart: It's precluded by the First Amendment, if you're right?
Jerome Cohen: No I wouldn't -- why would that necessarily follow, I would think that the board--
Potter Stewart: You say if there was no law, then you rely on the first amendment and in order to rely on that Amendment you have to show that --
Jerome Cohen: That we would have access to --
Potter Stewart: -- municipality or a state or a government.
Jerome Cohen: Well I don't know if it wouldn't -- I think we'd have to show the need to communicate to those workers.
Potter Stewart: No, no, no because if -- so long as the employer is a private person the First Amendment isn't implicated at all.
Jerome Cohen: Yes, but when you take a private decision to refuse to give a labor union information, time, materials or facilities and then the state decides to sanction that decision, I think then you may have the necessary state action to an analysis just like Reitman versus Mulkey.
Byron R. White: On that basis, you convert every private property owner in the state action as soon as he stands at the – at his gate with a gun and keeps you off the property --
Jerome Cohen: Well --
Byron R. White: -- and he calls the Sheriff and has you put off?
Jerome Cohen: Mr. Justice White time and again in the statute the employer is left free to communicate with those workers or communicate with that chain store owner and I think the Doctrine of Mosley case I think might apply here. I think what we're seeing is the Content of Speech is implicitly regulated. The employer can talk to those workers or for instance in the chain store, the employer can talk to that chain store owner and say, “Please buy my products they are grown at -- they are cheaper because I am non union but we are precluded,” I think the same kind of analysis applies --
Byron R. White: No, that's different. You've gotten into a different issue than the property that you are saying right now?
Jerome Cohen: Yes, well I am just pointing out that what they've said in the case is they have said that they think –
Byron R. White: You are not suggesting that because there might be a question about the prohibition against talking to merchants that the property provisions are bad or that the election provisions are bad, or that the Compulsory Arbitration Provisions are bad?
Jerome Cohen: Well the Compulsory Arbitration Provision of 1393(b) I don't think is bad for the reasons the district court found it to be bad. We never argued that the Seventh Amendment applied, but I think it's bad as a prior restraint because what it says is that upon proper application by a grower, the board shall grant an automatic ten-day order restraining a strike to boycott or a threat they'll have. I think what I am saying is that time and again --
Byron R. White: You mean every strike that's restrained violates the First Amendment?
Jerome Cohen: No, I didn't say that, I say that to allow the restraining of a strike or boycott without giving us an opportunity, I am talking about Section 3093(b), without giving us an opportunity to have notice and be there, that is a prior restrain. It not only goes to strikes. However it goes to boycotts or even a threat for the boycott. So I think the argument that I am making is that when you look at the statute as whole I think I mean every --
Byron R. White: Every ex parte injunction against a strike violates the First Amendment?
Jerome Cohen: I think an ex parte injunction without notice against picketing does violate the First Amendment because it's the burden. When you look at the breadth of the regulation, the burden that you'd be imposing on counsel is not a very great one. It's a practical matter. That counsel knows he is preparing his papers to enjoin the union. We are not saying he has a formal notice. It could be formal or informal. They know the pickets are there. They can give somebody a notice, pick up the phone, it doesn't stop him from preventing from presenting his papers, excuse me, but what it does do, it allows him to present the facts without having a participation by the union and I think there are two reasons in a strike picketing situation, a boycott situation where you need the notice first. The facts in these matters are always susceptible of various interpretations and you need both sides there to have a balanced presentation of the facts. And second, we need to be there to narrowly tailor and pinpoint that order, so that we don't unnecessarily encumber the First Amendment.
John Paul Stevens: Mr. Cohen?
Jerome Cohen: Yes.
John Paul Stevens: I don't want interrupt your chain of thought but I do want to ask the two questions about the election procedures if I may, is that —
Jerome Cohen: Yes.
John Paul Stevens: Well, first of all you said that the election was exclusive means of obtaining recognition, is that –
Jerome Cohen: Yes.
John Paul Stevens: The District Court's opinion at (A) 26 of the jurisdiction statement points out that before an election could be held, the union must first demand and be denied recognition by the employer. And I read that I assume that if the employer had granted recognition that then they could have proceeded and then that would have been inadequate to enable the union represent the employees.
Jerome Cohen: But Mr. Justice Stevens, I'm referring to the unfair labor practice section (A) 5 that nothing in this article shall be construed as requiring an agricultural employer to bargain collectively until a representative of his agriculture employees has been determined by means of a valid secret ballot election. What I'm saying is this. Voluntary recognition I think is a precondition, but the other ways of getting recognition for instance that the NLRA has card checks or the use of economic power. So I think we're -- farm workers now are in the same situation that railway workers were before 1927 or all other workers were before Jones & Laughlin. The election procedure is the only way we could force an employer to recognize --
John Paul Stevens: What about a strike?
Jerome Cohen: No, a strike can be enjoined if you'd take a look at section 1385 (b) 12, it's another one of those sections –
John Paul Stevens: Recognitions, recognizing the strike would be unlawful under the statute?
Jerome Cohen: Yes. What happens an employee, an employer in that case could file a petition under 1389 (c) and claim that a claim was made on him at that point, all picketing becomes criminal and illegal under section 1385 (b) 12 and --
John Paul Stevens: How about the strike itself, the picketing would be illegal, but would the strike itself be illegal?
Jerome Cohen: The strike itself could not be used to gain recognition. We could not strike in that situation unless we had asked for a majority vote, and we don't even know what the provisions for the majority vote would entail in that case. By filing the petition, the employer stops our activity.
John Paul Stevens: He stops the picketing, but does he stop the strike, do necessarily you say, half the people won't go to work.
Jerome Cohen: Well, that's not clear Mr. Justice Stevens.
John Paul Stevens: That is not --
Jerome Cohen: I don't think that's clear.
John Paul Stevens: And one other question on election if I may, do you agree that there have been somewhat successful elections?
Jerome Cohen: No, there is no -- there's been one election. The elections are also in the Enforcement Stipulation, but I think if you look at the Enforcement Stipulation it bears up the district court's findings of fact namely that the election procedures are unworkable. The history of a Cactus election is an illustrative one. By the time the hearings had been gone through and set, the peak season had expired, as the matter of fact the employees had left, so the Teamsters Union, which filed for the petition, withdrew the petition.
John Paul Stevens: But do you agree the record shows that there is at least one successful election?
Jerome Cohen: Yes, it does, but as Mr. Lee says in his brief, he says that in about 22% of the cases in the Citrus, the election might be -- procedure might be workable. What we're saying is, we think that we have a right to associate in an effective and meaningful way, and when you have as your exclusive means of constraining an employer to recognize you in a procedure which after extensive findings of fact as to the length of season in the grapes which is three to five weeks, the length in the cantaloupes which is three to five weeks, the district court finds it's unworkable, they are saying on the one hand you may have it, but it's unworkable and we can't obtain our goal.
Byron R. White: Well, do you think if the state, if there is a state statutory provision regulating labor management relations and one of the provisions is by the way we don't believe too much in collective bargaining and the employer need not recognize any collective bargaining representative although unions are certainly legal and they can go about their business all they want to, of trying to force the employer into recognizing, but as far as the law is concerned the employers are under no obligation to recognize any collective bargaining representative, would that be unconstitutional?
Jerome Cohen: No, I think what amounts to an unconstitutional restraint on us in this case is that we --
Byron R. White: How about my example?
Jerome Cohen: I don't think it would. I think we only have a constitutional right to attempt to get that employer to recognize us and bargain with us.
Byron R. White: Yeah, well they -- certainly the state is nicer to you in this case than in the one I have?
Jerome Cohen: No, Mr. Justice White our point is that they are not because what have they done to us? They have taken away our right to communicate with the public, that's made criminal. If we picket and the employer files a petition without by the way the protections of the NLRA which says if the engineers are petitioned against themselves, that is not a bar, B7 is not analogous to B12, they've deliberately left that out, they stop our picketing. If we use the procedure by the time we get to a vote, if we could, as the District Court found it's taken too long. We can't get access because the board cannot engage in -- we have a disagreement here, but I think that if we examine and analyze the statute, the fact that there are maybe workers out there in a labor camp during a campaign we may need to talk to them, because they may move on. We can't get to the workers, we can't talk to the public, we have an unworkable election procedure, and by the way when you look at the Sections 1384 and 1385, you find that if we were to get there, it's also criminal to coerce, or threaten, or restrain an employer to bargain about what the Act broadly characterizes as management rights. And management rights in this statute are defined to include such subjects as discharge for cause, it includes seniority, I would like to get the language because I think it really reveals how unlike the NLRA and how oppressive this is to us. We can't bargain about hiring, suspension, discharge or transfer of employees.
Byron R. White: You don't suggest that's unconstitutional by itself?
Jerome Cohen: I'm saying that all these things taken together amount to what I think is the test. Is it a substantial restraint on our right to associate and I think when you make that an unworkable exclusive election procedure the only way to force an employer to get recognition, when you take away --
Byron R. White: You don't claim any constitutional right to have a collective bargaining representative that the employer will recognize?
Jerome Cohen: What we claim is --
Byron R. White: Or I take you just a while ago said you didn't have any such thing?
Jerome Cohen: I think what we have is that right which in the railroad case in 1927, I believe in Jones & Laughlin, I think farmers could still have that right, we are still back in that junk, and well I think we have the right to associate together to try to improve our wages, hours, and working conditions. And what I'm trying to say and -- it's a lot of different talking here then it is on Gabilan Street in Salinas California, so I know I'm not saying it as well as I should. What I'm trying to say is that everything that we do, if we try to boycott, it's made criminal. If we talk to a manager of a store, which has been our traditional tactic and we still desire to do it, it's made criminal and you can enjoin it. If we try to talk about pesticides, if we try to talk about the things mentioned in 1384 and 1385, we can't talk about it at the table. If we try to have an election procedure with limited resources that we have, the time runs out on us. So even those sort of pre-law rights that all other workers had, we'd rather have those than a law which forces us. As the Court said, this law is the perversion of the stated goal in the procedure, the stated goal is to give us a freedom to organize, this law doesn't do that. It creates a barrier to that. That I think is the gist of our argument. At every step, everything that we try do we lose out and there is unrebutted testimony in the record from pages 397 to 400 of the appendix that we lost contracts after this law was passed, that membership declined. The wages and benefits were adversely affected, that the numerous lawsuits and temporary restraining orders not only directly affected us, and here is where I think maybe I misspoke myself earlier Mr. Justice White, but it has a chilling effect on our supporters. I would like to give you an example of that maybe we should talk about that because it means --
Byron R. White: Is this in the stipulation?
Jerome Cohen: In the overbreadth, I'm saying what happens when someone looks at a statute that says I can't induce or encourage manager to ask him to take a good off that has been directly used against us, but we've lost boycott support for that and there is testimony to that effect.
John Paul Stevens: Mr. Cohen what about the fact if I understood Mr. Lee correctly, the one-third of the unfair labor practice proceedings have been against employers for discriminating against employees engaging in union conduct, that can't be harmful to you, can it?
Jerome Cohen: No, we are not saying that's harmful to us. We are saying that unbalanced, if there is a careful reading of this Act that it really doesn't sugarcoat the pill. I mean the pill is there and it's going to kill us because so many of our economic tools are stripped from us, and by the way, that it just doesn't balance, it doesn't make the difference. That election was a consent election and it was in a dairy where there was year around employment. I think that further illustrates the point that we are trying to make. The state has made an issue of abstention in this case, and I'd like to say that in anticipating what Mr. Lee might say on rebuttal that I don't think abstention would be proper here because the language that we are challenging in the area of First Amendment rights is very clear. It clearly prohibits truthful speech. It clearly prohibits us from talking to people. This gets nowhere near Tree Fruits where the issue was whether you were picketing a store. In your dissent Mr. Justice Stewart you said if there were no available ways of communicating with the store, then you might not be able to ban picketing. This bans all ways of communicating with the store and I think it's clear on its face. There is a number of defects. It's not our fault. I know the brief is long, but I think the issues, each issue in and of itself with the exception of the access issue is fairly simple and straightforward. We don't think you can ban truthful speech. We don't even think you could ban false speech because you need robust debate in this society especially in a labor dispute. There is concurrent jurisdiction between the Labor Board and the Superior Court. That means that we are in the procedural maze and as in examination of items 2A through 2F of the Safeway series of litigation shows even as Justice Rehnquist's question illustrated even though the Superior Court had appellate review in effect over that board, they continue to enforce an unconstitutional statute after that. There is no certification procedure here, so there is no fast way of getting a resolution. I think Congress gives us the right under Section 13, I mean 1893, I forgot the statute to file for the – for our federal constitutional rights in Federal Court and that's we've done and I don't think that we need to go to State court.
William H. Rehnquist: Well do you contend that every one of the provisions of this Act is unconstitutional?
Jerome Cohen: No.
William H. Rehnquist: Well then how do you justify the District Court's order enforcing enjoining its enforcement in its entirety?
Jerome Cohen: Well, I think it hinges--
Byron R. White: [Voice Overlap] proceed against an employer?
Jerome Cohen: I think it hinges on whether or not it's separable or not and I think that the intent of the legislature should be examined. The legislature --
William H. Rehnquist: Do you think that Federal Court is the best place to examine that as opposed to a State Court?
Jerome Cohen: I think when it's clear on its face, yes. The grower, interveners in paragraph two of their motion to intervene, characterize this as a comprehensive statute to totally regulate that had as its basis that for that regulation for an unfair labor practice chapter, a criminal section.
William H. Rehnquist: Well, the grower interveners -- grower interveners aren't the Arizona legislature?
Jerome Cohen: No, but the Arizona legislature did not put a severability clause and even though the National Labor Relations Act has one and I think that does say something about their intent. They looked at a general scheme and they deliberately left it out.
William H. Rehnquist: Isn't there in Section 1 of the Arizona revised statute a general severability provision?
Jerome Cohen: But I think that that general severability provision would not apply to a more specific statute. When the legislature constructed a statute I think when you look at --
William H. Rehnquist: Why would you have a general severability provision that says any statute enacted in the future by this legislature will be considered severable? Why would you say that failure to include a specific severability provision and then subsequently enacted statute wasn't covered by the general severability section.
Jerome Cohen: Mr. Justice Rehnquist that's a very good question.
William H. Rehnquist: I think it is too.
Jerome Cohen: I have an answer to it, right and my answer is this. They were looking at a general scheme for labor legislation. That general scheme was the National Labor Relations Act. That National Labor Relations Act contained a severability clause, they left it out. I think that says something more immediate.
Byron R. White: I didn't mean it, you have an answer there, why did they need one?
Jerome Cohen: I think they did need it to make their intent clear --
Byron R. White: I know you do, but you haven't told us why.
Jerome Cohen: When you, if you Mr. Justice White if you read this statute and look at for instance their inhibitions on boycott, they say in their declaration of policy that it is a state policy and there is a need to inhibit a boycott. Now I claim and I think upon examination you'll agree that you cannot ban truthful speech that you cannot ban all discussions with the manager. So with all the inhibitions on the boycott disappear, do you think that the legislature would let Cesar Chavez and the farm workers run around unfettered, and boycott it and boycott people, I don't think they would, I don't think they would. I think that the prohibition, I think by giving an employer the right to ban picketing upon the filing of a petition that he himself could engineer, I think if they struck that down, if you struck that down, they wouldn't want to stand. I think if you took out the procedures, how can the procedures of this Act 1390K, and 1393A and B, which is we've said over and over again provide for TROs without notice in the area for First Amendment rights, if you take out the enforcement procedures would the legislature allow it to stand? I think it depends on what sections are found unconstitutionally I guess is my answer.
Byron R. White: So what if the, so what if the court had found only one, only the compulsory arbitration provisions of the Constitution?
Jerome Cohen: [Attempt to Laughter] Well, I think --
Byron R. White: Then are they not severable or severable?
Jerome Cohen: In and of itself?
Byron R. White: Yes.
Jerome Cohen: May be not severable, but together with --
Byron R. White: Where do you get that, out of the Section 1?
Jerome Cohen: No, I am assuming that you are correct in your analysis.
Byron R. White: Well, I just assume one section declared unconstitutional, then would the entire statute fall?
Jerome Cohen: It would depend on the sections.
Byron R. White: I said compulsory arbitration?
Jerome Cohen: Well, I would rather categorize it --
Byron R. White: I know you would, but how about compulsory arbitration?
Jerome Cohen: No I don't think it would.
Byron R. White: Well, why not?
Jerome Cohen: Well, I am --
Byron R. White: Wouldn't you have to go to the section one that --
Jerome Cohen: Mr. Justice White I am assuming that what Justice Rehnquist says is correct. I would not like to make that assumption however I think that, I don't think it applies in this case. I think they were designing a statute, and when you look at the declaration of policy you see what they were trying to do. They were trying to stop strikes, they were trying to stop boycotts, so I guess it depends on what it struck down.
Byron R. White: It's your position that all of the unfair labor practice sections are now -- should have fallen with these five sections, all of the unfair labor practice sections?
Jerome Cohen: I think the whole statute--
Byron R. White: Against the unions, against employers, against everybody?
Jerome Cohen: That's I think in the past.
Byron R. White: No more elections.
Jerome Cohen: The election procedure was found unconstitutional.
Byron R. White: No more anything --
Jerome Cohen: As impressed upon agriculture, at the heart of the statute yes if the election procedure falls, I think the district court is right, the rest of it must fall. If the boycott procedures fall, I don't think the legislature would have allowed it to stand, that's right, because I think what they were trying to do to balance our power against their power.
Byron R. White: -- Labor Relations Act started out, it was just unfair labor practices against employers.
Jerome Cohen: Yes.
Byron R. White: Well what do you mean if you struck down the unfair labor practices against unions, why would you strike down the ones against employers?
Jerome Cohen: You are assuming the presence or absence of the election procedure in that question?
Byron R. White: Either way.
Jerome Cohen: I think without an election procedure, you have no statute.
Warren E. Burger: Well the district court seemed to have some sort of a general remand in -- not literally but pretty close to it, to the legislature to try again come up with a more balanced statute though. I gather you agreed, let's get that clear, the legislature might say, no this is in the light of the district court opinion this is just too difficult and wipe the slate clean, no Act at all. They could do that, couldn't they?
Jerome Cohen: Well they could Mr. Chief Justice. We're not saying that they can't experiment. I think what we're saying is that they --
Warren E. Burger: I am just asking one question, can the legislature say these judges have confused this issue so much that we'll just wipe the slate clean, we'll repeal the entire statute and we aren't going to enact any new statute?
Jerome Cohen: Yes they could do that, yes they could.
Warren E. Burger: Is that what you want?
Jerome Cohen: [Attempt to Laughter] It's, we're not see it's not – we are not saying that the California Act is constitutionally mandated or that the National Labor Relations Act is constitutionally mandated. We're saying that when you look at the inhibitions first on the speech to consumers, then on the access to the workers and speech to workers, we're saying that it is unconstitutional, that it falls below that ground floor under which a state can't experiment, that's what we're saying. I think that I'd like to sum up by saying first that as to all the sections I don't think we need actual enforcement as to each and every section to have a case or controversy to allow this Court to examine those sections. Those sections as to which we have actual enforcement happen to be the most blatantly unconstitutional sections. I think that's clear. The threat of enforcement, we are in a much stronger position then the doctor in Doe v. Bolton or the teacher in Epperson, or the vendor of real estate in Linmark. This is designed to hit our activities. Broadrick doesn't apply here because these activities are speech activities within, not within legitimate suite of the statute, it's not conduct. So I think that we have the right to ask that each and every section be examined not only under threat of prosecution, but because the criminal section makes this an overbroad criminal statute, because each and every violation of every section of this statute is a crime. Thank you.
Warren E. Burger: Do you have anything further Mr. Lee.
Rex E. Lee: Yes, I do if Chief Justice would like to go ahead at this time. I would simple like --
Warren E. Burger: As we like let both of you get back to Utah and Arizona, the climate is much better there?
Rex E. Lee: Well I appreciate that courtesy Mr. Chief Justice. May I simple point out that most of my friend Mr. Cohen's argument has been directed to portions of the statute as to which there is no record or not presented in the either the questions presented in the jurisdictional statement nor in the motion to affirm. There are no findings of fact. There have been no even determination by the district court and as a consequence those issues come before this Court at this time for the first time. And that aside from everything else whether that amounts to case or controversy or simple good judicial procedure does not make sense. Most of Mr. Cohen's argument has been directed toward the TRO procedure, B7, B10, and B12. Let me turn however, very briefly to those and give my response though I say that a fortiori this is not being a case or controversy as to those issues that the district court did decide, it's certainly is not a case or controversy as to those issues that the district court did not decide and that were not included as part of the questions presented in the jurisdictional papers. First, with the regard to TROs. This has been the principal procedure objection that has been raised all along, but let me isolate the issue very precisely. I agree with Mr. Cohen that Rule 65 of the Arizona Rules of Civil Procedure is made a part of everyone of those TRO proceedings. Rule 65 of the Arizona Rules of Civil Procedure is identical to the federal rule. There are only two differences, one has a comma where the other one doesn't, and one says ‘and' where the other one says ‘or.' Carroll did not say, Carroll did not say that under no circumstances, can there be temporary restraining orders without notice. The rule in Carroll is identical to the Federal Rule 65. So that what my opponents are in effect asking this Court at this time is to hold Rule 65 unconstitutional, including the Federal Rule and they are also asking that Carroll be overruled. Now, with regard to the B7 arguments, that case, as this Court will recognize, simply reverses for Arizona purposes (Inaudible) case that came down in 1964 and makes it alright to or makes it a secondary boycott in effect to induce, encourage and so forth management employees. Now there was -- I look at (Inaudible) recently this morning. There is no hint of a constitutional basis for (Inaudible) holding. Mr. Cohen is very creative and I'll grant you that if you take his interpretation of that statute that when you say those oranges have been treated with dangerous pesticides, don't buy them, but that raises serious. First Amendment questions, I couldn't agree more. But I vigorously disagree that that's what that statute means and I think that for the first time in this Court, when it has never been considered by the lower court when there is no record on it and when there is nothing anywhere in that enforcement stipulation, that has even a hint of that kind of an enforcement of B7 that this is the time to be applying it. Now with regard to B12 and this prohibition of organizational activities after an election has been filed. The real fear there -- B12 is simply a counterpart of the federal rule that says where you had an election or where a petition has been filed within 12 months, then further picketing and organizational activity is prohibited. The fear is that that will be used for an improper purpose and I can see fully the possibility of its being used for an improper purpose, just the same as in Friedman versus Rogers there was a possibility of an improper hearing being held. But if, it were used for that purpose then it is very clear that under a combination of 1383 and 1385 A1, it's an unfair labor practice, and there would be a defense to it for that reason and that reason alone. As a consequence this conjures of defects all of which combine to exercise and effect on associational interest that is management rights, boycott, talking to manager of the store, talking about pesticides are illusory in this case. They depend again on hypothesis, on speculation and they are hypotheses and speculation with which we vigorously disagree. Now in that regard, look at Tree Fruits. There is no question that in Tree Fruits just as the amicus says this Court went to great lengths to construe that statute in such a way as to – as to save it. And it did so, in fact, in reading out that language except picketing that is contained in the 8B42B proviso. It did so because of its First Amendment concerns. Now, a decent respect we submit for a comity within a federal system and for the respect of one judicial system for another judicial system indicates that the same approach ought to be or the same difference ought to be accorded to the Arizona courts.
Byron R. White: And by doing what?
Rex E. Lee: By permitting in the B8 context Mr. Justice White, an opportunity well in all other contexts for the Arizona courts to say what their statute means. In every instance, this B7 and the B8 depends on how you read the statute. Similarly the election provision --
Byron R. White: Now you're talking about may be a (Inaudible) abstention?
Rex E. Lee: That's exactly what I'm talking.
Byron R. White: Saving the federal question?
Rex E. Lee: That is exactly what I'm talking about.
Harry A. Blackmun: You have a certification procedure in Arizona?
Rex E. Lee: There is not, Mr. Justice.
Potter Stewart: Not?
Rex E. Lee: There is not. Finally --
John Paul Stevens: Mr. Lee what happens if there are say 10 or 20 of these cases where the employer runs in and gets a TRO from a County judge or some place, and then after they educate him on the law they get it vacated, and there is never any appeal to the Supreme Court. They'd say that's more or less what's been happening that there isn't a practical deterrent that and they can't violate those injunctions during the few days they are outstanding?
Rex E. Lee: Well, if that is a defect, Mr. Stevens, it is a defect in Rule 65 of the federal rules because that is exactly what Rule 65 permits.
John Paul Stevens: Well, the Rule 65 isn't specifically directed at First Amendment protected activity as a statute or at least arguably protected?
Rex E. Lee: Well, but Carroll said that you have to get, you have to give actual notice except when there is some kind of compelling reasons that you can't. That is the Rule 65 rule, so that Carroll in effect in a First Amendment case affirmed the Rule 65 approach to life. There is nothing in this appendix, nothing or anywhere in the record that indicates that in fact there was any impropriety, any failure to observe the Rule 65 or any failure to attempt, there is simply nothing on it as to what the facts in those cases were. This is just not the case to be deciding the constitutionality of Rule 65, which is necessarily what you have to decide.
John Paul Stevens: The problem as I understand the burden of Mr. Justice White's question is how does the Supreme Court of the state really get to construe the statue in this? Well, it's on the book, it does have some deterrent effect I suppose on the First Amendment --
Rex E. Lee: I would think that in a case in which I go into court, I get a TRO against Mr. Cohen, and then he immediately goes before the Arizona Supreme Court on a special writ, which that statute provides and attempts to dissolve it because I've violated his constitutional rights. Mootness would not be a problem because it is the kind of thing that is capable of repetition, yet evading review.
Byron R. White: Of course, if you are right about case or controversy, why, you probably couldn't get in a state courts either. So, I suppose before we get to abstention we have to rule against you on the case or controversy?
Rex E. Lee: Yes and I vigorously urge you not to do that, Mr. Justice White and on that happy note, I will conclude my argument.
Warren E. Burger: Thank you gentlemen. The case is submitted.