William H. Rehnquist: We'll hear argument first this morning in Number 96-126, Walker Chandler v. Zell D. Miller, Governor of Georgia. Mr. Chandler.
Walker L. Chandler: Mr. Chief Justice, and may it please the Court: In 1990 the State of Georgia adopted a law requiring drug testing of all members of the State government, State employees. Almost as an afterthought, it adopted a law requiring drug testing as a condition of employment or candidacy for candidates for public office. The first of those laws was struck down in the lower courts. This law was brought forward before this Court by me and my co-plaintiff, who ran for office in 1994.
Sandra Day O'Connor: Mr. Chandler--
Walker L. Chandler: Yes.
Sandra Day O'Connor: --you say that the petitioners ran for office in '94, and in the petition you brought here there's no assertion that any of the petitioners plan to run again in the future, is there?
Walker L. Chandler: Not in the... as I recall, not in the actual pleadings in the lower court. However--
Sandra Day O'Connor: No. So how would we have jurisdiction?
Walker L. Chandler: --Your Honor, I believe this case would not be moot, because it would be capable of repetition and yet evading--
Sandra Day O'Connor: Well, how would it be if none of the petitioners plan to run again?
Walker L. Chandler: --Your Honor, I plan to run again.
Sandra Day O'Connor: But that was not stated--
Walker L. Chandler: That was not stated below. Also, Justice O'Connor, I... my candidacy and the candidacy of all Libertarian Party members is premised on the concepts of limited government and freedom from unconstitutional searches and seizures among all the other liberties reserved to the people by the Founding Fathers, and in that respect I would think that OCGA 21-2-140 is violative of the interests of all candidates, whether or not--
Sandra Day O'Connor: --Well, that's a merits argument, certainly, but normally we would look to see if there's some situation in a case like this of being capable of repetition and avoiding any review, and normally we would look to see some avowal that yes, indeed, these petitioners or at least one of them intends to run again.
Walker L. Chandler: --Yes, I understand that.
Anthony M. Kennedy: And you didn't seek to bring this on behalf of a class of candidates.
Walker L. Chandler: No, sir, Your Honor, I did not.
William H. Rehnquist: Mr. Chandler--
Walker L. Chandler: Yes.
William H. Rehnquist: --I'm wondering why, if you want to raise this issue, you don't have to refuse to take the drug test, rather than go ahead and take it and get on the ballot and then challenge it later.
Walker L. Chandler: Your Honor, we filed this action prior to submitting to the test, prior to qualification by having this little piece of paper that certified us as being drug-free. We were the nominees of our party. We had an obligation to take forward the message of our party, the other messages of our party in the electoral process, so we essentially had no choice but to submit... unwillingly, perhaps, but to submit to this State-ordered search.
Antonin Scalia: When did you file the suit, before the election or after the election?
Walker L. Chandler: Before the election, Your Honor, in May of--
Antonin Scalia: So at that time there's no doubt that the case was not moot.
Walker L. Chandler: --Yes, Your Honor.
Antonin Scalia: At that time it was very much alive.
Walker L. Chandler: Yes, Your Honor.
Antonin Scalia: So the complaint is that you... what, that you didn't amend your complaint in order to assert repetition after the election? Have we ever required that, amending a complaint in a suit that originally was not moot in order to aver that mootness has not occurred?
Walker L. Chandler: I don't know, Justice Scalia.
Antonin Scalia: I don't recall we've ever required that. Anyway, as an officer of the court, you represent to us that you intend to run again, that this issue will arise again if the Georgia law stands?
Walker L. Chandler: Yes, sir. We search in vain the cases that this Court has handed down which deal with suspicionless searches to find where any blanket search of this nature, this magnitude, and lacking any showing of any compelling State interest, has been granted by this Court.
Anthony M. Kennedy: Suppose that a State agency said, in the interests of all of our employees, everyone once a year must take a physical exam. We don't want to know the results. All we want you to do is to say that you've gone to a doctor, any doctor you want, for a physical examination. Is that a search?
Walker L. Chandler: Yes, Your Honor, I would think that would be a search.
Anthony M. Kennedy: When does a search arise, when you go into the doctor's office?
Walker L. Chandler: I would think so, Your Honor.
Anthony M. Kennedy: Even though the results are disclosed only to you?
Walker L. Chandler: I would think that it would be a search, because if the result of that search is that you can no longer serve in that agency, then--
Anthony M. Kennedy: No, no. No, the agency says, we don't care what the medical exam discloses. We just, in the interests of our employees we want you to be examined once a year.
Walker L. Chandler: --Well, I would think, Your Honor, that's... with all due respect, that's not before the Court, and... but the--
Anthony M. Kennedy: Well, there are a lot of things that are not before the Court that are going to be before the Court based on this opinion, and so we have to write an opinion that covers more than your particular case because we're interested in the general principle.
Walker L. Chandler: --Yes, Your Honor. I--
Anthony M. Kennedy: So I'm asking why this is a search.
Walker L. Chandler: --I would think that it would be a search if, as a result of that search, a person could lose employment.
Anthony M. Kennedy: That's not my hypothetical. All you have to do is go to the doctor and just certify that you've had a physical exam once a year at a doctor of your choice. The agency says we want to do this in the interests of our employees, and that may well... we can play with the hypothetical.
Walker L. Chandler: Yes, sir.
Anthony M. Kennedy: The agency pays for it, or whatever. Why is that a search?
Walker L. Chandler: I would think it would be a search under the principles of... that were announced in Schermberger, which drew a distinction between bodily searches--
Anthony M. Kennedy: That is to say, Schmerber?
Walker L. Chandler: --Yes, sir.
Anthony M. Kennedy: Well, there the... involuntarily a needle was inserted in the... with the patient by a doctor who was not of his choice at a time that was not of his choice. He had... he was there, on the gurney, in custody. But that's quite different, it seems to me, from just saying go to a doctor once a year.
Walker L. Chandler: It may well be, Your Honor.
Antonin Scalia: It may well be? You think... I assume this physical exam requires a strip, right?
Walker L. Chandler: Yes, sir.
Antonin Scalia: And you're saying that that's not a search, requiring you to go to somebody else and strip down and have that person examine your body?
Walker L. Chandler: I think it's--
Antonin Scalia: What possibly could be a search if that's not a search?
Walker L. Chandler: --Yes, Your Honor.
Antonin Scalia: I mean, you might want to argue about whether it's an unreasonable search, but you don't have any doubt it's a search, do you?
Walker L. Chandler: No, sir, Your Honor.
Sandra Day O'Connor: Mr. Chandler, would you have any problem if what the State did instead of requiring a drug test within 30 days of filing your nominating petition is require every candidate for the State office to file an affidavit certifying that the candidate is not now and has not in the past used or ingested illegal narcotic drugs?
Walker L. Chandler: I would object to that, Your Honor, because that would--
Sandra Day O'Connor: There's no search.
Walker L. Chandler: --There is no search, but I--
Sandra Day O'Connor: It certainly wouldn't... you wouldn't be here on the basis that you are here today.
Walker L. Chandler: --That would be true.
Sandra Day O'Connor: And a State has wide latitude, does it not, to define qualifications for State office?
Walker L. Chandler: Yes, so long as those... so long as they do not violate people's constitutional protections.
Sandra Day O'Connor: And what constitutional protection would be violated by requiring such an affidavit, that to be a candidate for State office you certify that you're not a drug abuser?
Walker L. Chandler: Or never have been in your hypothetical, Your Honor. You asked if I would object, and I would object not on a constitutional grounds--
Sandra Day O'Connor: I'm asking on what constitutional basis.
Walker L. Chandler: --I'm sorry, Your Honor, I fail to know of a constitutional basis that that might fit within that hypothetical.
Sandra Day O'Connor: You just wouldn't like it.
Walker L. Chandler: Yes, Your Honor. I think that it might have some implication for free... free speech implications under the First Amendment, Your Honor, but--
Ruth Bader Ginsburg: Well, if you had to take an oath that you have never been disloyal to the Government of the United States, of a State, or you've never been a member of, say, the Socialist Party, then you might have an objection under a different amendment than the one you're claiming, but you are claiming the Fourth Amendment, and you are doing it in relation to a bodily intrusion. The Fourth Amendment puts on the same line as the security of one's person the security of one's papers. Would you then question the requirement that if you run for office you must do a complete financial disclosure which will involve disclosing papers?
Walker L. Chandler: --I think that there the Court has drawn distinctions in the past between bodily searches and financial disclosure. I did not object in this case to financial disclosure.
Ruth Bader Ginsburg: But the Fourth Amendment does say persons, houses, papers, so why would you say that it's all right to demand papers but not have anything to do with the person?
Walker L. Chandler: Because I think there is a strong, compelling privacy interest in the person that goes far beyond the compelling... any compelling interest--
Ruth Bader Ginsburg: Where do you get that from in the Constitution?
Walker L. Chandler: --Justice Ginsburg, I do not know.
Anthony M. Kennedy: Well, isn't-- --And is it the personal interest in not having to strip and have needles inserted, or is it the personal interest in not disclosing the results, because if it's the latter, then your case is perhaps more difficult.
Walker L. Chandler: I think it's the former, Your Honor. It's the actual giving up of bodily fluids, the insertion of--
Anthony M. Kennedy: So you think most people would think that that's more of an invasion of privacy, just going to the doctor once a year, than having to disclose all of your financial records, all of your holding, all of your poverty or all of your wealth, as the case may be?
Walker L. Chandler: --There is a big distinction in this case, Your Honor, and that is that if I disclose my wealth I cannot be kept off the ballot.
Antonin Scalia: Mr. Chandler, every invasion of privacy is not a search, is it? Are you willing to equate every invasion of privacy with a search? I mean, would you consider it a search if, instead of having someone examine you physically to decide whether you have cocaine in your body, you are required to disclose whether you have cocaine in your body? I mean, that may be an invasion of privacy, but is it a search?
Walker L. Chandler: Yes sir, I would deem it a search.
Antonin Scalia: You think it's a search?
Walker L. Chandler: Yes, Your Honor.
Antonin Scalia: So when I ask you, you know, are you a drug addict, I'm searching you? Words have no meaning if we're going to talk like that. Why-- --You just told me it wasn't, so which answer are you giving? You answered to me that no, it wouldn't be a Fourth Amendment search, but I'd object, and now you tell Justice Scalia, yes, it's a search. Now, which answer do you want to abide by here.
Walker L. Chandler: I'm sorry, Justice O'Connor, I'm not exactly sure of the contradiction that I've voiced here.
David H. Souter: Mr. Chandler, going back to Justice Ginsburg's question, assuming that you had actually to disclose papers, produce papers as distinct simply from producing information, so that there really were... in the same sense that we're talking with here, there really were a search involved, I take it that your answer would... I take it that your answer to the question would not necessarily be the same as your position here, because the governmental interests involved are different. You might or might not think the Government had a sufficient interest in requiring that kind of production from its political candidates, but at least the Government's justification, what we would look to to decide whether it was reasonable or not would, I take it, in your view be different from the weight of the government's justification in this case. Is that a fair way to characterize your position?
Walker L. Chandler: Yes, Your Honor. I think that would be a fair way to characterize it.
David H. Souter: And your real argument before us, I take it, doesn't go to the scope of what is or is not a search, but the scope of what is permissible on the grounds that the government does have a justification which is sufficiently weighty to make that search a reasonable one. Is that it?
Walker L. Chandler: Well, I certainly felt like it was a... that a financial search or a financial disclosure was a more reasonable government requirement than a drug test.
David H. Souter: All right, and what is your reason for saying that this particular search is not a reasonable one? What's the nub of your attack on the government's justification?
Walker L. Chandler: First, there is no real evidence of a real problem. There... this... the searches which have been allowed by this Court have always been narrowly limited to certain areas... the front line in the war on drugs, drug interdiction, the use of firearms, the train accidents, things where a real problem or a real potentiality has been shown, and not mere hypotheticals. And so the essence of this case is that this is just yet another attempt at expansion of governmental power over people for a very symbolic purpose, which is put on the State of Georgia. It's not a test that's designed to keep drug abusers out of office. It's a blanket search, carried out for symbolic purposes to... in my opinion to show that the General Assembly of Georgia is against drugs.
John Paul Stevens: Mr. Chandler, at the outset of your argument you mentioned that there was a... the statute originally applied to all State employees, and that that was held invalid. Was that by Georgia courts or a Federal court?
Walker L. Chandler: Federal court, but that was a companion statute, not this statute.
John Paul Stevens: I understand, but who held it unconstitutional?
Walker L. Chandler: The district court in Atlanta.
John Paul Stevens: A State district court, or a Federal district court?
Walker L. Chandler: A Federal district court, Your Honor.
John Paul Stevens: Was that case appealed?
Walker L. Chandler: I don't know, Your Honor.
John Paul Stevens: When was that? Is it--
Walker L. Chandler: That was in 1990.
John Paul Stevens: --1990.
Walker L. Chandler: Yes, sir.
John Paul Stevens: Thank you.
Walker L. Chandler: This... a very similar case was brought in the district court. this district... Harmon v. Thornburgh was also decided in the district court level in 1990, where the Justice Department wished to test, have blanket tests of all Justice Department attorneys, and that was held by the court at that time, the district court, to be not within the parameters announced by this court in Skinner and Von Raab. Certiorari was sought in that case by the Government and was denied. I consider this case to be almost exactly in line with that particular case.
William H. Rehnquist: Well, the statute here, Mr. Chandler, does single out certain high-ranking State offices, and I think... I would think you're in a position... you ran for what, lieutenant governor?
Walker L. Chandler: Yes, Your Honor.
William H. Rehnquist: You're in a position to challenge the requirement for lieutenant governor. I don't know that you're in a position to challenge requirements for other offices which you didn't seek, and certainly, don't you think there is an argument on behalf of the State that the people have a right to have a lieutenant governor who is, free of drug use?
Walker L. Chandler: First, Your Honor, the... my coplaintiff, Sharon Harris, ran for commissioner of agriculture. Secondly, there was never any showing that drug abuse or drug use in high offices or any other offices in Georgia has been any kind of a problem.
William H. Rehnquist: Well, Georgia, then you feel can't adopt a prophylactic rule that says we want to make sure it doesn't become a problem?
Walker L. Chandler: No, sir, I do not think they can. I think that a potential problem, a hypothetical, potential problem is not a real problem and is therefore a symbolic problem.
William H. Rehnquist: What if the Georgia statute, instead of reading the way it does, had said everybody has to take this drug test but anybody can get on the ballot. All you have to do is announce the results of your drug test.
Walker L. Chandler: Your Honor, that might be more permissible in my opinion, because then it would at least leave it to the voters to decide whether they want to choose a person who submits to a test, who passes a test--
Antonin Scalia: Why--
Walker L. Chandler: --or who refuses a test.
Antonin Scalia: --I thought you were complaining about the search.
Walker L. Chandler: Yes.
Antonin Scalia: The search would be exactly the same in that situation, wouldn't it?
Walker L. Chandler: Yes, Your Honor.
Antonin Scalia: So how would it be any better? I mean, if your real objection is the search, your answer should be, you know, no, it's just as bad. I think he's capable of answering himself. Well, but he's not capable, perhaps, of perceiving whether what he's objecting to is the search, Chief Justice. If... maybe you're not objecting to the search, then. You have some other problem than the search?
Walker L. Chandler: I certainly object to the search as a prerequisite to being... to ballot placement, Justice Scalia.
Antonin Scalia: Well, isn't there a search in this other case? But you don't object to that.
Walker L. Chandler: In which other case?
Antonin Scalia: In the case the Chief Justice put to you, where you had to undergo the same search, but you could run whether it came out positive or negative.
Walker L. Chandler: Well, I'm just saying that there's... that that would not... I think it's for the people of Georgia to decide whether or not you can be on the ballot, Your Honor.
Antonin Scalia: I'm sorry, I just don't understand, given that your objection is to the search--
Walker L. Chandler: Yes.
Antonin Scalia: --why you would not... if it is to the search.
Walker L. Chandler: Yes.
Antonin Scalia: Maybe it's not. I don't understand why you would not find the Chief Justice's hypothetical just as bad as the one that you confront. You can't run unless you get searched.
Walker L. Chandler: Well, obviously, Your Honor, I have objected to the search.
Ruth Bader Ginsburg: Or take another example. No testing before, but the moment you are elected to office, you must have a test and you must repeat it annually. Would you object to that? Then the voters make their choice without any requirement of a--
Walker L. Chandler: I would object to that because, Justice Ginsburg, there's no showing that there is a problem.
Ruth Bader Ginsburg: --Well then, how does that differ from in between the time that you're on the ballot and the time that you're elected? What is the difference in my situation, in the question that I pose and the one that Justice Scalia posed?
Walker L. Chandler: I believe this Court has held, at least since the Carroll case in 1925, that blanket searches are intolerable, and that that would just be a blanket search.
Anthony M. Kennedy: And would that be the same if every employee was required to get a physical examination once a year?
Walker L. Chandler: Yes, sir, I believe it would be. It would be a blanket search required by government, and I think a blanket search of people to determine whether or not they're using drugs, or whether or not they have a terminal illness, or whether or not they have a genetic defect, or a blood-borne disease... we have to look at--
Anthony M. Kennedy: And that's because you object to the intrusion of going into the doctor's office, not the disclosure of the result?
Walker L. Chandler: --Insofar as that intrusion is forced upon me by the State, yes, Your Honor.
Sandra Day O'Connor: Mr. Chandler, I guess the test under the Fourth Amendment is whether the search is reasonable. Now, does it enter into the balance of whether it's reasonable at all if it were shown that the virtually universal experience of private employers is to require an annual physical of employees, or to require a periodic drug testing? Does that affect the balance when we look at a State-ordered search or not? Does it affect what's reasonable, the general practice in the private community?
Walker L. Chandler: I do not think so, Justice O'Connor, because there's a difference between the contractual relationship between employee and an employer and the political relationship between the government and candidates, and people who wish to be a part of that government. That would be my answer to that question, Your Honor, but it may not address the point that you're concerned with.
Anthony M. Kennedy: You'd have no problem with the law saying... or maybe you do, but if a high official, say the Governor, uses drugs, he is immediately disqualified from office, illegal drugs?
Walker L. Chandler: Your Honor, for one thing, that--
Anthony M. Kennedy: Would you have a problem with that?
Walker L. Chandler: --I would even have a problem with that, Your Honor.
Anthony M. Kennedy: Why?
Walker L. Chandler: For one thing, that presupposes that the person that's in the high office has broken the laws of the State of Georgia. The person could have, for example, been in a jurisdiction or another country where such drug use was not even illegal. Therefore, he would not have broken the laws under the State of Georgia. It is a shifting majority decides what is legal and illegal. We see tobacco, for example, approaching illegality in this country, or portions thereof. That introduces the novel idea that a citizen of a State is subject to the jurisdiction of that State no matter where in the world he or she might go, and that is an element--
Anthony M. Kennedy: You think drug use is irrelevant to the abilities and the qualifications of a public officeholder?
Walker L. Chandler: --Your Honor, I would think that that would be a matter of a question of how long ago was it, the frequency of use--
Anthony M. Kennedy: Let's just suppose, during his term of office.
Walker L. Chandler: --During his term of office, Your Honor, again it might be a question of frequency. It might be a question of which drugs are being talked about. It might be... there might be any number of questions--
William H. Rehnquist: If they're illegal drugs--
Walker L. Chandler: --If--
William H. Rehnquist: --would you distinguish between illegal drugs?
Walker L. Chandler: --Your Honor, we would like always for our elected officials to be people who obey the law. However, when the Founding Fathers set forth the Fourth Amendment's prohibitions against illegal searches, I think they realized that people would be doing things that were illegal, and the answer that they sought, the answer that they would not allow would be blanket, suspicionless searches.
David H. Souter: But Mr. Chandler, I think the issue that's been raised is at least so far not an issue of search, as such, but an issue of substantive qualification. Do you think there is anything unconstitutional about a State law provision to the effect that an officeholder who commits a crime... let's make it easy, a crime in the State, under State law, forfeits his office? Is that unconstitutional?
Walker L. Chandler: I do not think that would be unconstitutional.
David H. Souter: Okay.
Walker L. Chandler: One of the issues here is, are there adequate protections that the people and the governments have to answer these questions? I think there are already adequate protections in normal law enforcement, in the electoral process itself when people can be weeded out. Nothing prevents a... an opponent of a politician in an election process to hold out his piece of paper saying he's been tested and then challenge his opponent to be tested. Nothing would prevent that sort of buffoonery, and there's also the adequate protection of a free press and public scrutiny. People live their whole lives, and they should be judged, perhaps, by the things that they do and the things that they say, and not by the products of their bodies. I would like to reserve the remainder of my time for rebuttal.
William H. Rehnquist: Very well, Mr. Chandler. Ms. Guilday, we'll hear from you.
Patricia Guilday: Mr. Chief Justice, and may it please the Court: This Court has established in Skinner, Von Raab, and Acton the test which permits drug testing in various contexts. The State of Georgia is not here today to challenge that test in any way or to ask for any extensions of that test. What we are asking the Court to do is to take the balancing of that test and apply it in a Tenth Amendment context, in the elections context.
Sandra Day O'Connor: Does Georgia think this case is moot?
Patricia Guilday: Georgia thinks that the injunctive relief that Mr. Chandler and the co-petitioner sought with respect to the 1994 election is certainly moot. The complaint also included a demand for, and the district court also recognized that the complaint also included a demand for declaratory judgment as to the merits, the constitutional merit of that statute, so to that extent, no, we do not think the case is moot.
Sandra Day O'Connor: Even in the absence of... that the petitioners would seek office in the future, and in the absence of a class action?
Patricia Guilday: Justice O'Connor, we would admit that that question is close. We read closely this Court's opinion in Storer, Norman, Meyer v. Grant, and the Democratic Party v. Wisconsin, all of which were elections cases. There were various factual contexts in those cases, and in many, or in some at least, the facts were similar, where the electior was over and there was no statement that the particular candidates intended to run for office in the future. Nonetheless, this Court held that because it was an elections context and the issues were likely to come before the Court again, that... I'm not sure which way to read the Court, either. It was not moot, and so we will hear it, or it is moot, but even though it is moot we are going to consider it because it is an elections context.
Antonin Scalia: I hope we didn't say that. [Laughter] I mean, if it is moot, how would we have Article III jurisdiction at all? That's jurisdictional.
Patricia Guilday: I believe--
Sandra Day O'Connor: How could we say, even if it's moot we have jurisdiction?
Patricia Guilday: --If it is not... if it is moot, the Court does not have jurisdiction.
Sandra Day O'Connor: You said that's what we have said.
Patricia Guilday: To be truthful, my reading of those cases makes it unclear as to what the Court was saying in each particular case.
Antonin Scalia: Do you think it's a pleading question, Ms Guilday, that whether a case is moot or not depends on what has been pleaded, as opposed to what exists? Suppose he pleaded that he would run again but you could demonstrate that he has no intention of running again, wouldn't the case be moot?
Patricia Guilday: Your question asked whether it was a pleading--
Antonin Scalia: I mean, it seems to me it's moot if he has no intention of running again. If he intends to run again and you accept that he... do you deny that he intends to run again?
Patricia Guilday: --No, we do not.
Antonin Scalia: It seems to me the case is not moot. There is such a case where the person said he was not going to run again and this Court did hold it moot. I forgot the name of it. But there are other temporal things, like residency to qualify to vote, or pregnancy, that inevitably are going to be over for that particular individual.
Patricia Guilday: That is correct, but in the elections context, whether this particular candidate decides to run again, certainly there will be other candidates who may make--
Ruth Bader Ginsburg: But he didn't ask for a class action.
Patricia Guilday: --He did not.
Ruth Bader Ginsburg: And he has represented in Court today that he does intend to run again.
Patricia Guilday: That's correct, Your Honor.
Ruth Bader Ginsburg: So if it's a pleading defect, it's a curable one.
Patricia Guilday: Correct, and that was going to be my response to Justice Scalia's question. If it is a pleading defect, the fact that Georgia comes in and proves that he's not going to run again, then it's no longer a pleading. Then it's evidentiary. So--
Stephen G. Breyer: So how does this work? I mean, if a case is moot, and then the parties come to this Court and they tell us something, a fact, make a factual statement that would mean it wasn't moot, are we just supposed to say, all right, now we treat the amendment as... the complaint as if it were amended? I mean, how does this work? I mean, there might be a lot of moot cases that people could file statements and say, well, we would like here to say a few things we didn't say in the district court which will make them not moot. Are we now supposed to treat all these cases as if they weren't? I mean, how does it work?
Patricia Guilday: --It works, Your Honor, in fact that Mr. Chandler and the other petitioners pled in their complaint, or they requested in their complaint for declaratory relief as well as relief--
Stephen G. Breyer: I don't see why that matters if it isn't a class action, and if there's no claim that he is going to run again. I mean, a lot of people would like declaratory relief on a lot of theoretical questions that they have, very interesting questions of law, but--
Patricia Guilday: --This Court--
Stephen G. Breyer: --how does this all work? I don't think it's just enough to come in and say, I would like some declaratory relief here in the absence of a showing that you have some plaintiff to whom it makes a difference.
Patricia Guilday: --This Court has responded to that very argument in the series of cases that I've just cited, which are in the elections context. They have not required to my reading of those cases any actual allegational proof that the particular candidate who is the plaintiff in that particular case--
Stephen G. Breyer: Isn't it a class action on behalf of other people who are clearly going to run?
Patricia Guilday: --I do not believe that all of those were class actions. I may be wrong in that, but I do not believe--
Antonin Scalia: Ms. Guilday, as I understand it, when this complaint was filed he didn't have to assert that he intended to run again because the election had not yet occurred. There was clearly no mootness when the complaint was filed. Isn't that correct?
Patricia Guilday: --That is absolutely correct.
Antonin Scalia: So the only issue is whether he had some obligation after the election to amend the complaint. Now, is there some obligation? Did the State, after the election, move to dismiss on the basis of mootness?
Patricia Guilday: Because we believed that the--
Antonin Scalia: Did the State do that?
Patricia Guilday: --No, it did not.
Antonin Scalia: So why would he amend his complaint? Did the court ask him to amend, to come forward to show that what was originally clearly not moot is now moot? Did the court make any such request?
Patricia Guilday: The district court--
Antonin Scalia: I can't imagine why he would have amended his complaint, no one having raised this issue. And Justice Scalia will correct me on this if I am mis-citing 1653, but it does say that defective allegations of jurisdiction may be amended in a trial or appellate court, so-- --Thank you for the law, Justice Ginsburg. [Laughter] Ms. Guilday, may I ask you whether there is any place in the record in this case where we might find evidence of some particular or special need in Georgia for a suspicionless general search program for candidates for office in Georgia? Is there any place where, in this record, we might find that, oh, there have been a number of officeholders, State officeholders in Georgia who have turned out to have drug problems?
Patricia Guilday: --There is no such record evidence in this case, Your Honor.
Sandra Day O'Connor: Was any offered by the State and rejected?
Patricia Guilday: No, Your Honor. The reason there was not... and I'm not sure at what stage you're talking about. At the time the legislature passed this statute, Georgia law has consistently held from the beginning that in Georgia the statute itself evidences the legislative history. There is no recording of any committee hearings, of any floor debate, anything like that.
Sandra Day O'Connor: Is there any indication anywhere in this record that Georgia has a particular problem here with State officeholders being drug abusers?
Patricia Guilday: No, there is no such evidence, Your Honor, and there is no... to be frank, there is no such problem as we sit here today.
Sandra Day O'Connor: Has this Court, in dealing with suspicionless searches, looked to what special needs there might be that would be an indication that a suspicionless... a blanket, suspicionless search would be appropriate? Isn't that what we've looked to? Is there a special need for the government?
Patricia Guilday: I think the question as to whether there is a special--
Sandra Day O'Connor: Have we looked to that, or not? Von Raab or other cases on which you rely, has this Court looked at a special need by the government--
Patricia Guilday: --Absolutely.
Sandra Day O'Connor: --for a suspicionless search program?
Patricia Guilday: Absolutely, the Court has looked at special need.
Sandra Day O'Connor: Okay. So what is the need Georgia asserts here that is special?
Patricia Guilday: The special need that Georgia asserts is that in Georgia the elected officials that are included in this statute are by constitution trustees and servants of the public. They are, by that constitutional provision, held to a much higher standard than is the ordinary citizen. They are, in fact, fiduciaries to the public.
Sandra Day O'Connor: Could Georgia require, instead of a physical search, an affidavit of a proposed candidate that that candidate is not now and has not been in the past a drug abuser, or user of illegal drugs?
Patricia Guilday: That requirement would raise issues involving the Fifth Amendment. Obviously, the opposite side of that is a compelled statement as to whether or not I use drugs. Secondly, this statute does not ask the candidate to say that I use illegal drugs. All it does is say the negative of that, that on this particular--
Sandra Day O'Connor: And you think a State could not ask a candidate to make some affidavit or certification regarding illegal drug use?
Patricia Guilday: --I believe it could not.
Sandra Day O'Connor: Even if the State offers criminal immunity for making that statement?
Patricia Guilday: That would then raise questions as to Federal law, would that State immunity affect any Federal drug enforcement--
William H. Rehnquist: What is your reason for saying that the State could not require an affidavit that you had not used illegal drugs as a candidate?
Patricia Guilday: --I think the question would, one, put in... it would be more intrusive and be more violative of the First Amendment rights of the individual to say, I have or have not in my past used illegal drugs.
William H. Rehnquist: What First Amendment right is violated there?
Patricia Guilday: The compelled... the State is compelling him to make a statement which he may or may not want to make.
William H. Rehnquist: Well, what if the State were to require a candidate to file an affidavit saying that he had complied with the financial disclosure laws of the State, and--
Patricia Guilday: I think the State does require that.
William H. Rehnquist: --And would that, too, be a violation of the First Amendment?
Patricia Guilday: It would not.
William H. Rehnquist: Why is one different from the other?
Patricia Guilday: The difference is, this Court has upheld the validity of the financial disclosure laws in several cases.
William H. Rehnquist: But we've never upheld the validity of drug laws?
Patricia Guilday: You've upheld the validity of drug laws. You have not upheld the validity of a affidavit... you have not addressed the issue, to my knowledge, of an affidavit saying I have or have not used drugs.
William H. Rehnquist: But why isn't the First Amendment issue, if there is one, the same in each case? In each case perhaps a candidate is unwilling to make that statement, and yet nonetheless the State requires it of him before he goes on the ballot.
Patricia Guilday: The issue in the First Amendment is, how intrusive is that of the First Amendment right?
William H. Rehnquist: So it's more intrusive to find out that a person has violated the drug laws than they've violated the financial disclosure laws?
Patricia Guilday: The Georgia statute does not require a citizen to state that he has violated the drug law.
William H. Rehnquist: No, but this is a hypothetical.
Patricia Guilday: As to an affidavit saying I have not violated the drug laws?
William H. Rehnquist: Yes.
Patricia Guilday: I still think that is more intrusive, because it is covering a larger period of time than is a drug test on one specific day that discloses only the presence of five specific drugs.
John Paul Stevens: May I ask in that connection whether it would be constitutional or not to require an affidavit? At least it would not be a search, whereas I think you would agree that this test does involve a search.
Patricia Guilday: This Court has established that it is a search, so--
John Paul Stevens: Now, similarly we go into the financial disclosure area and say an affidavit describing one's finances would not be a search, but do you think under the reasoning you're advancing in this case that Georgia could constitutionally require every candidate for public office to say not only what his finances are but say, you may examine all of my private papers in order to be sure I haven't committed a violation of law in the past, and you'd get a full picture of my finances. So instead of a financial disclosure statement, we just say, you may search my papers, all of my private papers to try and find out if I've been guilty of any wrongdoing. Would that be permissible?
Patricia Guilday: --That would not be permissible.
John Paul Stevens: Why not, because it would probably weed out the unqualified candidates.
Patricia Guilday: The test comes down again to balancing how intrusive is the nature of that infringement on First Amendment rights versus how intrusive is it in the Fourth Amendment context.
Antonin Scalia: You'd rather have your papers searched than your body searched? I don't... I'm not sure that that's... as far as intrusiveness is concerned--
Patricia Guilday: I'm not sure it's a question of which I would rather. This Court has held in the financial disclosure area that there are limits on what those statutes can require. They have not gotten so far... this Court and other courts have not gone so far to require a full production of income tax records, which would reveal a variety of information... you know, how many times I've gone to the doctor, how many businesses I own, or what... all of the other financial transactions I might have had. Questions--
Sandra Day O'Connor: --Well, I suppose there are Federal laws that say income tax returns are not open to examination by third parties.
Patricia Guilday: --That's the point I'm making, that to compel--
Sandra Day O'Connor: But there's no Federal law, is there, saying that a State may not require a proposed candidate to make certain certifications or affidavits before being a candidate? There's no Federal law about that, is there--
Patricia Guilday: --There's no--
Sandra Day O'Connor: --restricting the qualifications that a State may set for its elected officials?
Patricia Guilday: --The same constraints that apply in this case, and that is the First Amendment, how in the elections context--
Sandra Day O'Connor: You think the First Amendment is violated by seeking... by a State requiring an affidavit of a potential candidate disclosing all criminal offenses of which the candidate has been convicted in the past?
Patricia Guilday: --Perhaps we should look at the Tenth Amendment. The Tenth Amendment says that a candidate restriction or a ballot restriction is constitutionally valid if it is a reasonable and nonarbitrarily intrusive restriction upon the individual's fundamental rights.
William H. Rehnquist: Well, I wouldn't have thought you could derive all of that from the Tenth Amendment. It doesn't say anything about ballot restrictions that I know of.
Patricia Guilday: This Court has used the Tenth Amendment to authorize the States to control their own elections, to regulate their own elections. Of course, within those constraints--
Sandra Day O'Connor: So you take the position that a State cannot ask... make it a requirement for a candidate for State office to file an affidavit disclosing criminal offenses of which that proposed candidate has been convicted?
Patricia Guilday: --No, I do not take that position because criminal--
Sandra Day O'Connor: You just did in response to my question, so what is your answer? Can a State do that?
Patricia Guilday: --My answer is--
Sandra Day O'Connor: Yes or no.
Patricia Guilday: --Yes, if it is otherwise constitutional. Your question--
Sandra Day O'Connor: Well, what other constitutional issues does that raise? These are matters of public record. Is it some constitutional violation to require an affidavit on some matter of public record--
Patricia Guilday: --No.
Sandra Day O'Connor: --on a proposed candidate?
Patricia Guilday: No, and that was going to be my answer. No. Criminal convictions are matters of public record in most States. In some States they are not. And so no, that would not be a restriction that impinges the Constitution in any way. However, the financial disclosure statements, because of the privacy interest that that intrudes, yes, does touch upon constitutional issues, and at that point this Court has called... has made limits on what information can be revealed. It's not an across-the-board, open all your papers up to the--
John Paul Stevens: Can you... have you finished your answer to Justice O'Connor? Can you... can I get you back to the Fourth Amendment? That's the part of this case that I'm most interested in, because it does raise a Fourth Amendment issue. Do you agree that if the State required, as a condition for running for office, that the candidate must allow a representative of the State to make... or, say, a certified public accountant of his own choosing to make a thorough examination of all his financial papers, including his income tax returns... I don't think there's any Federal statute that says he can't make his income tax returns available if he wants to... that that would violate the Fourth Amendment? Do you think it would or would not?
Patricia Guilday: --I'm sorry, your hypothetical--
John Paul Stevens: My hypothetical is, the State requires not just a financial disclosure affidavit, but an opening up of the candidate's records for examination by a representative of the election commission, or whatever it is, to find out if this man may have committed some crimes or done a lot of bad things that the electorate would like to know about, such as possibly buying and selling drugs from time to time, which might be revealed by his financial records. In order to accomplish that goal, could they require that sort of a general requirement of candidates? Reveal your financial papers. We don't want to trust your word that you did or did not do it.
Patricia Guilday: --It comes back to the same balancing test, and that is, how invasive are those... is that restriction, or--
John Paul Stevens: They're invasive in that they reveal everything that's in writing in your private files about your correspondence with people and your financial transactions.
Patricia Guilday: --I think that requirement would require the candidate to disclose much more information than would be permitted under the Fourth Amendment.
John Paul Stevens: Do you think it would violate... that statute would violate the Fourth Amendment?
Patricia Guilday: I do.
John Paul Stevens: And your reason for saying, this is different, is that the search is less intrusive?
Patricia Guilday: Exactly, just as this Court has held in Skinner, Von Raab, and Acton.
David H. Souter: Because it is a body search as opposed to a paper search?
Patricia Guilday: I don't think the distinction is body versus paper. I think the distinction is what information is disclosed.
David H. Souter: Well, what about a case... let's take a building search. I suppose the State has just as much interest in assuring itself that its candidates and its officers are not drug possessors and drug dealers as it has in assuring them that they are at least not current drug users. Would it violate the Fourth Amendment to require a candidate to open his house to a search by some private investigatory agency which would then certify after the search that no drugs were found there? Would that violate the Fourth Amendment?
Patricia Guilday: I believe it certainly would violate the Fourth Amendment.
David H. Souter: And why is opening the house less intrusive than opening the body?
Patricia Guilday: The difference is in the information that is disclosed.
David H. Souter: Well, the information in the one case says there are no drug residues in the body, and the information in the other case is, there are no drugs in the house. Why is there a significant distinction between those two disclosures?
Patricia Guilday: There's two distinctions. In the Georgia statute, yes, we require the candidate to submit the urine sample. The information comes back only to him. That is, whether or not there are--
David H. Souter: And he then has to pass it on... and I guess I was assuming... maybe I didn't state it carefully enough, but I was assuming that in my example he would have to pass on the certification from the private investigatory agency. In each case the candidate could withhold the certification and be disqualified. Assuming that, is there any distinction in principle or practice between the degree of intrusion?
Patricia Guilday: --The private investigatory agency has learned a substantial amount of information.
David H. Souter: Well, so does the laboratory or the tester in the case of the bodily search.
Patricia Guilday: The tester learns only the presence of those five drugs. Any other individual that walks into a candidate's home or to my home learns everything about me, and I think that's the distinction, the amount of information that's disclosed by the required test.
Antonin Scalia: Or the amount of what is searched also. Isn't that relevant also? I mean, wouldn't your answer be different if the test in question, even though it only came up with those five drugs, is a test that required a full body search, body cavity search and everything else.
Patricia Guilday: That's absolutely true.
Antonin Scalia: Your point here is this is just a urinalysis. That's all that's involved. How does this test work, actually? Like... I don't see how... I'm not totally familiar with how the statute works. It sounds as if it tells a candidate, well, in some 30-day period of your choosing go in and get a drug test. Is that what it does?
Patricia Guilday: Not within some 30 days of your choosing, 30 days within the qualifying deadlines for the particular office that you were running for.
Stephen G. Breyer: Is it a deadline, or is it when he files? I mean, it's usually... say the deadline's September 30. Suppose he files the preceding June 30.
Patricia Guilday: No. This statute says--
Stephen G. Breyer: It has to be... in other words, the deadline's September 30. It has to be in the month of September.
Patricia Guilday: --The particular offices that are involved in the statute have particular times for qualifying.
Stephen G. Breyer: So you have to be 30 days previous to that.
Patricia Guilday: Right.
Stephen G. Breyer: You find one day where you go in and you're drug-free.
Patricia Guilday: That's correct.
Stephen G. Breyer: All right, so how's that supposed to prove anything? I mean, I guess the greatest druggie in the world could go in and find a day when he was drug-free.
Patricia Guilday: As this Court held in Von Raab, perhaps the greatest druggie in the world could not.
Stephen G. Breyer: Is that right? That's what I don't know. I mean, how... what are the facts? That is, if a person does take drugs, is it impossible to find a day in a 30-day period when he's free of drugs and would pass the test?
Patricia Guilday: That, of course--
Stephen G. Breyer: Suppose he stays off drugs for a month preceding, or 2 months preceding the test.
Patricia Guilday: --If that particular individual can do that, yes, you're right, when he goes in for his drug test, his drug test is going to become positive--
Stephen G. Breyer: How long in advance of the test do you have to stay off drugs if a moderate drug user, before the moderate drug user is drug-free on the day of the test? Is 3 weeks good enough? Is 4 weeks good enough?
Patricia Guilday: --The cases before this Court have cited expert testimony giving a range of from 22 days until a month before.
Stephen G. Breyer: All right. So I mean, what is the statute doing?
Patricia Guilday: It's doing--
Stephen G. Breyer: Is it simply... what is the theory behind the statute other than making a political statement? Is it that there are some people who want to run for office who find it impossible to refrain from drugs for 22 days prior to their voluntarily going in and taking the test? I mean, what is the theory of the statute?
Patricia Guilday: --I think that is one purpose, to--
Stephen G. Breyer: Is that an important purpose, a purpose that we find those people in society who are not able to stay off drugs for 22 days and therefore... is that the basic idea?
Patricia Guilday: --That is not the primary reason, no. It is a reason that this Court in Von Raab found to be significant. In our case, the primary purpose we would offer this Court for this statute is that the information that a negative drug test gives to the public about the individual candidate is significant.
Stephen G. Breyer: Has this Court ever gone into the... I mean, I thought in Vernonia, for example they're like random drug-testing. Random drug-testing, of course, catches people.
Patricia Guilday: That's correct.
Stephen G. Breyer: Have there been cases which are not random drug-testing?
Patricia Guilday: Von Raab involved pre-employment or pre-promotion testing, one-time basis, of individuals who sought positions in the various categories. It was not random testing.
Ruth Bader Ginsburg: Ms. Guilday, do I understand you correctly that your major reason, Georgia's major reason is symbolic to the extent I think you said they wanted the public... they wanted the people who were in public office to have what it takes to exercise their best judgment. Is that--
Patricia Guilday: That is our purpose. It is not our position that that is a solely symbolic purpose. It may have symbolic implications, but because a statute is symbolic, if it's otherwise constitutional, does not render it constitutional.
Ruth Bader Ginsburg: --This is my question, then. If it comes down to, this is not like the random test that's designed to catch people but is in part symbolic, and the State is making a judgment, and then we have a Constitution with the Fourth Amendment in it, if we're choosing between the public perception, the lesson that we want to teach the people, doesn't the constitutional amendment come first, come before the notion that we want people to show that they can exercise their best judgment by being willing to submit to drug testing?
Patricia Guilday: My way of answering that question is what I started saying in the beginning. The Fourth Amendment requires the balancing test that this Court used in Skinner, Von Raab, and Acton to determine whether or not a particular--
Ruth Bader Ginsburg: But my question to you is, then, doesn't the Fourth Amendment always win on that balance unless you have a good reason, a reason beyond, we want to show that these people take tests. One reason is that you would catch people, as was the case in the train engineer, but here that's not the purpose.
Patricia Guilday: --The Fourth Amendment always wins out if in that balancing test the government interests are not sufficient to outweigh the privacy interest. It is our position that when you do that test in an elections context in which the people have a right to know anything about a candidate which touches on their qualifications for office--
Ruth Bader Ginsburg: Then go for... once they're in office, and they're going to be in and maybe run for election, so do this periodically? Can people have any less... is their interest any less if we're doing this balancing?
Patricia Guilday: --No, the balancing is no less in that context. The distinction or the reason for not requiring them then primarily are procedural. Once--
Ruth Bader Ginsburg: But you could... as a matter of constitutional law, Georgia could say, annually, or even randomly, everyone in office in this State has to have a drug test.
Patricia Guilday: --Everyone in the category of offices that are included in the statute, yes, I believe Georgia could have--
John Paul Stevens: But if you rely on the public's right to know everything about the candidate, as I think you described it, it seems to me that that would justify a totally unrestricted search of the house and all private papers.
Patricia Guilday: --I said that and I... and that is a quote from one of this Court's cases. However, obviously the Constitution has to define everything.
John Paul Stevens: And the Constitution looks a little more closely at totally suspicionless searches, doesn't it?
Patricia Guilday: It does.
John Paul Stevens: Yes. I take it... or I took it that part of your argument for the State interest that sort of overcomes the private interest here is based on the Tenth Amendment, and I'm not sure that I understand that argument. I mean, I take it you do not argue that the Tenth Amendment in effect gives the State some kind of right or some dispensation from the Fourth Amendment, so what is the Tenth Amendment argument?
Patricia Guilday: The Tenth Amendment argument is, in this balancing test that's required in the Fourth Amendment, that in the usual context the scales start out even for both sides. What the Tenth Amendment does is, it tips those scales from the outset on the side of the government because--
David H. Souter: Why?
Patricia Guilday: --Because the Tenth Amendment in the cases this Court has held in the elections context say, we are going to give great deference to the State's own characterizations of its interest in the elections and in particular in the qualifications of its elected officials.
David H. Souter: Well, there's no question of there being an assertable Tenth Amendment interest there, but there's no question about there being an assertable Tenth Amendment interest to prosecute homicide, but that doesn't affect the balancing that goes on in determining... or that does not affect the Fourth Amendment analysis.
Patricia Guilday: I'm not sure I understand--
David H. Souter: Well, I suppose if someone challenged the right of the State to prosecute murder we would say, well, that certainly is not one of those powers that was taken away from the State when the national Constitution was ratified.
Patricia Guilday: --That's absolutely--
David H. Souter: I don't see how that would affect the Fourth Amendment analysis when somebody objected to an unreasonable search and seizure that had resulted in evidence that the State wanted to introduce in a homicide case.
Patricia Guilday: --The distinction being that the Tenth Amendment and in particular the elections context has repeatedly been given by this Court special consideration. In Gregory--
David H. Souter: Well, we've said that a great deal of discretion over elections is within the State's power, but that's as far as we've gone, isn't it? Thank you, Ms. Guilday.
Patricia Guilday: --Thank you, Your Honor.
William H. Rehnquist: Mr. Chandler, you have 5 minutes remaining.
Walker L. Chandler: An interesting aspect of the Tenth Amendment question to me is that that the States... that which was not granted to the Federal Government specifically was... the rights not granted to the Federal Government was reserved to the States or the people respectively, and when the States appear to jealously protect their rights, they are not so jealous in protecting the rights that the people reserved unto themselves, and one of those rights is that a citizen should be free from unreasonable searches and seizures.
Antonin Scalia: Mr Chandler, do you think this case would be stronger for the State if it was random drug-testing? Does that thought comfort you, if they amended this statute to make it random?
Walker L. Chandler: It would not comfort me, Your Honor, and I'm not sure--
Stephen G. Breyer: This is stronger, isn't it, because it says... basically what she said was that this is the State's interest only in making certain that the really serious drug users who can't stay off drugs for 30 days, which you have to be quite a heavy user, that they want to identify those people, so she said that's a very important interest, identifying these very, very heavy drug users, and against that it's a fairly limited intrusion. I think that was her point. So what would your reply be to that?
Walker L. Chandler: --The State might be in a better position if they had some sort of random search system for people who had been elected to office. However, I think even such a search would violate the principles that have been enunciated by this Court in Skinner, Von Raab, and the Vernonia School District case, because there has to be some nexus between the tests, and there has to be some compelling State interest, and there has to be a showing of, not potential harm, but an actual existing harm. I don't know, for example, that they've ever shown that commissioners of agriculture in Georgia have a heavy drug problem, or for that matter lieutenant governors.
William H. Rehnquist: Well, what if they show that there was a commission of agriculture in Alabama and a lieutenant governor in Alabama who turned out to drug addicts. Does Georgia have to wait for it to happen in Georgia?
Walker L. Chandler: I'm not sure, Your Honor, but I would sort of think so. I would also just--
John Paul Stevens: But isn't your real argument they have to wait at least till it happens in Alabama. [Laughter]
Walker L. Chandler: --A lot of things happen in Alabama that don't happen in Georgia, Your Honor. [Laughter]
Antonin Scalia: Does the State have to show that he was a worse secretary of agriculture because of that drug habit?
Walker L. Chandler: I would think so, Your Honor, although arguably--
Antonin Scalia: I mean, it's supposed to be good for poetry. I don't know what it does for-- [Laughter]
Walker L. Chandler: --And how... and also, Your Honor, how could we argue that drug users would be any worse than the General Assembly Georgia has now. [Laughter] There's an old saying down in Georgia that no man's liberty or property is safe as long as it's in session, and 21.2.140 is a perfect example of that, where for the most cavalier of reasons, just pure symbolism, they want to take away people's Fourth Amendment rights, they want to make people stand up and take these tests so as to somehow show that they are... by a piece of paper that they... that's easily avoided that they can be qualified to hold high office.
Ruth Bader Ginsburg: One point that you made in your brief was that this is... this test is not very serious because it would catch at best the worst cases, but you certainly wouldn't find more satisfactory a test that was less hard to beat, a test more pervasive, so I didn't understand your point about the lack of effect of this test.
Walker L. Chandler: This test is even worse because it involves cheap symbolism. The other test would violate the Fourth Amendment protections announced by this Court in Von Raab and the other cases as being suspicionless. I would like to just say finally that this all reminds me of what Franklin warned us about, is that people who would give up some of their liberty to get some security will end up with neither liberty nor security. And we are rapidly approaching a time in this country where there are absolutely no technological limits to what a government can do to make sure that people are obeying its edicts. There will be a possibility of hair testing to show that people can... have used something that the government has declared illegal within the last 6 or 8 months based on where in the hair... the fact that we can force obedience by these people should not necessarily mean that we should do so, especially if what that means is that we have to give up our constitutional rights to do so. Thank you.
William H. Rehnquist: Thank you, Mr. Chandler. The case is submitted.


Earl Warren: Number 87, Tampa Electric Company, Petitioner, versus Nashville Coal Company Et Al.
William C. Chanler: Mr. Chief Justice --
Earl Warren: Mr. Chanler.
William C. Chanler: -- may it please the Court. This case is here on writ of certiorari from the Sixth Circuit which divided Court affirmed decision of the District Court and the Middle District of Tennessee holding that a certain contract supply part of the requirements coal of Electric Utility Company for a period of 20 years violated the Clayton Act, Section 3 of the Clayton Act and was therefore void. The case arose on an action for a declaratory judgment. The respondent moved for summary judgment and there was no dispute as to the facts, the present petition of the plaintiff although of course moved for summary judgement. The Section 3 of the Clayton Act set forth in full at page 2 of my brief, so far as pertinent here, if Your Honors are about pretty vague, provisions are that it shall be unlawful for any person engaged in commerce to make a sale or contract of sale or to fix the price of goods, or to fix the price charged therefore or a rebate of such price on the condition agreement or understanding that the lessee office thereof shall not deal in the goods of a competitor or competitors of this lessor or so. Then follows the qualifying clause where the effect of such lease, sale or contract to sale may be to substantially lesser competition or tend to create a monopoly in any line of commerce. Now it's our contention that this contract it has to bring out, it doesn't come within that act in any manner at all. The petitioner, Tampa Electric Company is a regulated electric utility operating in the area around Tampa, Florida serving 3% of the land area and 11% of the population of the State of Florida. The respondents mine and sell coal in the Ohio River coal areas of the Western Kentucky. The National Coal Company, the operating company which is assumed this contract is a subsidiary of Nashville Coal Inc. which it's entirely a subsidiary of West Kentucky Coal Company. The background of contract is this. Well 1955, well, probably 1957, Tampa produced all its electricity in oil burning plants. It had two plants on Tampa Bay, focus point, (Inaudible) the name when use five together six boilers all burning coal. It is a fact of a recent meeting (Inaudible)
Potter Stewart: They're burning oil.
William C. Chanler: Burning oil, thank you sir. It is a fact as the reason to brought out where the Federal Power Commission that Florida as a fuel have not state and until very recently, would monopolize entirely by oil which it could most conveniently brought -- be brought by Tampa across the Gulf of Mexico. In 1955, the management of Tampa got in touch with some coal merchants finding a coal producer named Justin Potter, Potter Tolling Company to consider the possibility of introducing coal as boiler fuel, in Florida and as a result, this contract was entered into on May 23, 1955. Tampa, the petitioner was to build a new plant, the Gannon Station initially with two coal burning units ultimately possibly with six units which might or might not burn coal. Potter was to supply the requirements coal for the first two units a minimum of 225,000 tons a year for a period of 20 years at a price fixed in the contract, and in addition, he was to supply the coal for any additional units added to Gannon Plant during the first 10 years of the contract which was built as coal burning units. Tampa was free after the first two units to construct 50 units as oil burning or gas burning or any other fuel but if they burnt coal, they came within the contract. So that this contract covers as I said a part of the fuel requirements of this electric utility company. In 1956, Potter's contract was taken over by National Coal and its parent West Kentucky. The deliveries were to commence in the Spring of 1957 after some discussion as to whether the price would be reduced. Finally in April 1957, the respondents announced that they would not perform the contract because they contended they have been advised by counsel that it violated Section 3 of the Clayton Act. We then brought this proceeding for declaratory judgment. None of these -- none of the facts I think are in anyway in dispute. The basis of the decision below was that the contract violated the Act because it embraced the total requirements, the first two coal burning units and such other coal burning units at Gannon Station as might be constructed to burn coal and that that was an enormous market with huge quantity of coal. Now Your Honors, I think are familiar with the purpose of Section C of the Clayton Act that disclosed by the statutory history, an Act of 1914 largely because at that time, they have grown up throughout the country the practice whereby large manufacturers and sellers who owned or control some particularly desirable article of commerce sought to tie up the resale or retail outlet for their goods over a large portion of the country as they could by selling their desirable product only on the condition that the purchaser would not deal with their competitors. The classic example was the International Shoe Company which possessed the patent that made it so much cheaper to manufacture shoes that no shoemaker could operate unless he had their patent. So they made a condition that they wouldn't license anyone to use their patent any shoemaker unless he also ordered leather in his last and everything else that he could use in making shoes, permitted International Shoe. And as the senate report pointed under its bill, there as a result, was impossible drainage more shoemaker anywhere in the country to operate unless he bought everything from International Shoe, they have the fact they have monopoly across that contract is what is commonly known as a time contract. The Act also forbids contracts which merely require that the purchaser shall buy all of the particular type of goods from the seller. It stand as examples there to dress fashion cases, standard fashion, fashion designer's guild where they sold these specialized fashion -- dress fashions that had a trade name and a value only on condition that the stores use them -- showed them would not display or use any other maker patents in their stores. More recent case of that type of exclusive-dealing agreement frequently referred to as the requirements contract is the Standard Oil of California case in which Standard Oil of California and its leading competitors sold oil, sold gasoline and oil to filling stations in the western seven States, Western Area, it only dealt with the seven States, Western Area because that was the only area in which Standard operated on the condition that the filling stations would not sell any other oil but Standard's or if its competitors -- of its competitors. The result of Standard tied up some 6,000 retailers in that area all with these requirements contracts. Now, of course those contracts were -- they didn't say you may not deal with our competitors like the fashion one contract said you can't sell somebody else's fashion but this merely said you must buy all your gasoline from Standard, but it had exactly the same effect. Now, there was where the type of contracts, type of transactions that Congress was directing its attention to when it's enacted Section 3 of the Clayton Act. And it's apparent from the debates of Congress what they objected to was a powerful manufacturer with leverage, economic leverage grow over the buyer, compelling the buyer if he wanted to deal with his goods at all, if he wanted to sell Standard gasoline to just buy nothing but Standard gasoline and that it was applicable only when they were trying to tie up the resale-retail outlets for their goods. Now, if you examine the Act again for a moment on page 2, you'll see that it was carefully drawn to carry out just that type of a prohibition. It shall be unlawful for any person to make a sale or contract of sale of goods, or fix a price or a rebate on such price, on the understanding or agreement that the lessee or purchaser shall not deal in the goods of a competitor or competitor of the substance. That's the language you would use if you're trying to say you can't impose an exclusive dealing condition on the buyer as a condition to his buying your product. The case -- the Act has been reviewed some 19 cases and various courts which is cited in the briefs, eight and nine I think in this Court and in everyone of those cases, a powerful seller with an economic leverage due either to a patent or to control or they trade name (Inaudible), Standard Gas, Standard Fashion, and so forth, imposed conditions to exclusive dealing on a substantial segment of the resale market for their product. As I said 6,000 retailers in the Western Area in Standard, 60% of the clothing manufacturers are better more expensive ladies dresses, in Standard Fashions, and so forth. In every case, moreover, the contract was based either expressly on a condition that the purchaser wouldn't deal with the seller's competitors or was of the type of requirements contract which had precisely the same effect. You must buy all your requirements from us or not. That did not violate the Act. As Mr. Justice Frankfurter pointed out in the Standard Oil case, a dealer who has entered into a requirements contact with Standard, that's the one that said you can't buy any gas from anyone else, cannot consistently with that contract sell the petroleum products of a competitor of Standard no matter how many pumps he has. And in every case, the Stan -- the seller had this economic leverage that's pointed out and in every case it tied up this large area of resale outlets. Now, it's my contention also in every case, the decree of the Court was directed exclusively against the seller. It was the seller against whom the Act was directed, the Act of it was saying divulge contract to be in that merely says a person shall not make a sale on this condition. So there never before has been a case in which the Act was directed against anyone but the seller to prevent him from imposing this exclusive dealing condition. Now, I think it's fairly apparent that the Act we have here before is -- it doesn't contain anyone of the four criteria which this Court has relied on and the other courts have relied on, and which Congress had in mind when they adopted the Act. In the first place, because it's obvious, this contract doesn't contain any express condition that the purchaser shall not deal in the goods of the seller's patents. It merely says that the seller will sale and the goods that were purchased, all of its requirements for the first two units and six other units of this one station as may be constructed as coal burning units during the first 10 years of the contract. That is not the equivalent of the type of exclusive dealing contract that said you can't buy anything from anybody else. Proof of it is, we are now purchasing oil -- merely a competitor of coal and boiler fuel in 11 oil burning units on Tampa Bay all integrated units producing electricity on the same wire and we can -- we have a perfect right to construct additional units of Gannon oil burning or gas burning units, thus dealing with coal's competitor of oil.
Charles E. Whittaker: Is that the violation to these contracts?
William C. Chanler: Under the contract.
Charles E. Whittaker: Under the contract.
William C. Chanler: Under the contract, we have the right. That's the concept. This contract doesn't forbid us to burn all the oil we want even in Gannon Station except in those the first two units and such other units as we designate this coal burning -- so it's not a requirement, full requirement's contract at all. The limited possible requirements contract limited to those new units in which we burn the coal. Actually, for that reason it seems to me it's really more like the contract for a fixed amount of oil -- of coal. Because everybody knows that the amount of coal burned in the particular unit can be told within 5% or 10%. When it's constructed, it's usually constructed to burn so many tons and then when it starts, it burns a little more or a little less. And then of course you can't tell practically how much demand there will be so that they like a little flexibility. Therefore, they make it a requirement's contract but it's only in the limited requirements of this one -- these two original units, not to fill the third coal burning unit, but as I say, they can burn oil in the future units and they're now burning oil. Now my friend says and the court below held that oil and coal are separate lines of commerce. Well, I point out that the basic clause of the Clayton Act doesn't say any thing about line of commerce. It says, "that the seller may not deal with the goods of the seller and purchaser, he may not deal in the goods of the seller's competitors. Coal is a competitor of a seller. The word line of commerce comes in only in the qualifying clause and I'll come to that later. However, let's assume that coals oil are separate line of commerce. We can burn coal in any of the oil burning units that we are -- where we are now burning oil and although of my friend and the court below say that that's a very unrealistic approach, the record shows that as soon as we began operating Gannon Station, the first unit there as the coal burning station and it was shown that coal could be brought down the Ohio river by barge across the Gulf of Mexico and to Florida, thereby breaking in to oil's monopoly, one of the respondent's principle competitors, the Peabody Coal company wrote to my client to Tampa, and formally offered to supply coal for two of the oil burning units who then were burning oil on Tampa Bay if Tampa would convert those units to coal. Thereupon, -- first, when the Tampa may interrupt with his oil suppliers and they reduced their price of oil. That's how begins the competition, this type of contract is. Coal was brought in to Florida, the price of oil dropped. Now, the only reason we're not burning coal right now at this very moment, purchased from their competitors in Tampa to produce our electricity has nothing to do with the restrictive conditions of this contract. It is the free act -- action of free and open competition. The moment Peabody Coal Company or some other coal company can offer us coal at a price that is competing with the present price of oil and oil people don't reduce their price any further, we are going to obviously convert and buy coal. We have to because we have to produce electricity at the cheapest rate, we are bound to. So that we are all free under this contract to buy, burn coal and buy coal from their competitors right now. In other words, it seems to me obviously that this contract doesn't and can't come within the basic clause of the Clayton -- of Section 3 of the Clayton Act because it doesn't prevent the purchasers from dealing in the goods of the seller's competitors and it's no use to say that the courts below did -- my adversary says "Oh but it does cover a very large quantity of coal because like any utility, we burn a lot of coal to produce our electricity" ultimately it may be a million or even more tons a year, the whole thing gets going. The Clayton Act doesn't forbid a contract for the large -- sale of a large number of goods, large quantity of goods. It only forbids the contract based on the condition that the buyer won't deal in the goods in the seller's competitors and this contract, of course, doesn't have any such effect at all. Now the second criteria, also the statutory history and decided cases which I've just referred in determining illegality under Section 3 of the Clayton Act is the question of whether the seller has leverage, economic leverage sufficient to impose the condition on the purchaser. The importance of that is very well express I think in Mr. Justice Black's opinion in Northern Pacific Railway of the United States be sure that dealt with the tying contract when it came up under the Sherman Act, the effect, the remarks are jointly after they were here. In discussing this issue of the seller having economic leverage is 356 U.S. at page 6 and 7. Now of course where the seller has no control or dominance over the tying product so that it does not represent in the factual weapon to pressure buyers into taking the tying requirement, any restraint of trade attribute -- attributable to set tying arrangements would obviously be insignificant at most. As a simple example, if one of a dozen food stores in the community where they refuse to sell flour, unless the buyer took sugar, it would hardly taint to restraint competition in sugar if its competitors were ready and able to sell flour by itself. Now, the same would be true if he said "I won't sell you any flour unless you ready buy all of your flour from me” and the other stores say "Oh we'll sell whatever flour you ask for. Now, it's conceded on the record in this case that there were 700 coal dealers in the Appalachian coal fields in Ohio, West Virginia and all around there who were ready, willing and even eager, as it does to sell us coal. West Kentucky or Potter Towing Company with whom we made the contract have invested the slightest economic leverage to compel us -- to deal with them at all or to compel us to say "if we deal with you, we don't deal with anybody else". The only reason this contract was made as a requirement's contract -- it's perfectly well understandable business reason which Mr. Justice Harlan called attention to in the Mobil case seven years ago that when you are converting from one fuel to another, it is necessary to have a long-term requirements contract to make it economically feasible to invest large sums necessary to construct plant and in that case was also related to conversion. The record shows that it cost us $3 million more to build the Gannon Plant as a coal burning plant than it would have if we built an oil burning plant. The record shows also that these respondents had to invest upwards of $7.5 million, I believe it's -- I'm told now it's $9 million in building barges to come down the Ohio river and the Mississippi river building especial docks in New Orleans to unload the coal from the barges and put it on the steamer that can cross the gulf and take it to Tampa and unloading facilities on Tampa's dock. Now, nobody's going to go into those that type of a long term investment and then say "Well, now I want to go out and see where I want to get my coal. Everyday I look at the market and buy sometimes from this man and sometimes from that." The only way anybody can justify that kind of an operation is to enter into a contract, the firm agreement that would supply all the coal that you need to burn in that plant or at least to long enough periods to amortize the cost of the plant. Actually, while this litigation is going on in Houston Pipeline Company, I think it is where the Federal Power Commission requested the right to put a pipeline into western Florida or Eastern Florida, it won't reach us on the other coast, the eastern coast. And the Federal Power Commission said, "Well, you can't do that unless you" enter into 20 year requirements contract with utilities on the eastern coast so that you're sure to have somebody to buy the gas otherwise, it's not economically feasible. That's why we entered into this contract and not in any way because of any pressure the seller could have put on us, because they tell us that the buyer had the pressure. They say that Ohio -- would say, "Oh yes, it was Tampa who insisted on the requirements. Well, maybe we did.” Certainly we wouldn't build the contract unless we would build the plant, unless we were sure of our requirements. Section C of the Clayton Act doesn't say that it's wrong for a buyer to go out and say "I want you to supply my requirements" and Your Honor pointed out in Standard Oil that a buyer always had the right to do that. So that clearly this contract doesn't come within the objection that the seller had any economic leverage. The significance of it is as I said that where there is no such leverage there is no real attempt to monopolize or limit competition. It isn't that kind of transaction. This isn't the transaction that Congress was talking about when the Act was adopted. Third, this is just a single contract by a single consumer for its raw materials from a single buy. It's the first time the Act has ever been applied or anyone has attempted to apply the Act to that type of contract. Hitherto it is always been a situation as I've said where the seller is trying to tie up all the outlets in the country, the market. The market is a place where a lot of people get together and buy. They refer repeatedly to this huge market represented by the Gannon Station at Tampa. Well, that's the electric light – electric producing sale. They don't buy or sell coal there. They make electricity and it's not a market. Now, it is true as they point out that the Act speaks of a contract for use or consumption. The reason the Act used a singular aid when Congress was talking about this -- this practice of making a lot of contracts was in part, you might for instance tie up one contract with Sears and Roebuck or the A and B Company which you tie up all the outlets of that big company in the entire country. Secondly, that the Act provided that it could be enforced by a single purchaser who said, "I am being discriminated against them" and because there are number of cases where a single purchaser came in, went to Court said, “I'm being penalized by this condition that the seller imposed on me and I don't want to live up with it and the Court, this Court has held he doesn't have to where the seller imposes an exclusive dealing condition in this manner. Consumption, of course had to be covered as well as resale because -- take the United Shoe Company. They were consuming leather and so forth in making shoes with this machine and the manufacturing process, the same situation arises but the real reason -- and so that language is perfectly consistent with the purpose of the Act and it certainly there's no reason because they used the word "A contract for consumption". They suddenly turn around and say "We therefore can apply it to a type of contract and normal business transaction whereby the careful producer of electricity arranges for its supplies, a raw product which was never contemplated by Congress and never before passed on by Court. Now, why do I say that it is wrong there to apply? I think the reason is that there is no basis in its contract at this kind for inferring that the contract is all could be used for the purpose of limiting competition. Mr. Justice Frankfurter pointed out in Standard Oil, one of the great questions was to find out what tests were necessary from which the inference could be drawn that the contract where or could be used for the purpose of limiting competition. He discarded there the test to prove him whether or not it in fact limited competition and so forth. But there to sound, to hit that the cause standard tied up 6,000 retail outlets a substantial part of the gasoline filling stations in that area and because the amount of gasoline sold was substantial and the substantial segment of the market, it could be inferred there that those contracts had the effect of limiting competition. I'm talking now of course of the qualifying clause, the contract must be shown to limit the competition or tend to cause monopoly but I don't --
Earl Warren: We will recess now Mr. General.