Warren E. Burger: We'll hear arguments next Jones v. Helms. Ms. Cosgrove, you may proceed whenever you are ready.
Carol Atha Cosgrove: Mr. Chief Justice, and may it please the Court: This case comes to the Court today on appeal from the United States Court of Appeals for the 5th Circuit. The question presented is whether, under the Equal Protection Clause of the United States Constitution, a state in furtherance of its interests in protecting its children and enforcing its criminal law may enact a statute which provides that a person who commits the crime of child abandonment and leaves the state is guilty of a felony, whereas a person who commits the crime of child abandonment without leaving the state is guilty of a misdemeanor. Appellee's challenge--
Warren E. Burger: Does it make any difference under this statute whether the particular person left the state three hours after the commission of the act or three years?
Carol Atha Cosgrove: --No, sir, there is no time element specified on the face of the statute. Appellee's challenge and the court of appeals decision is predicated on the ground that the statute distinguishes between two classes of abandoning parents, based upon the exercise of their constitutional right to travel, and that therefore the statute is void under the Equal Protection Clause. Appellee is a father who was ordered by a Georgia court to make child support payments but who never did, who simply went to Alabama. He testified that he did not go to Alabama for the purpose of avoiding his child support obligations but rather to attend school. When he returned to Georgia to visit his child he was arrested on the warrant for the felony of abandoning his child and leaving the state, and received a three year sentence suspended on condition that he make child support payments, which he never did. Instead he just left the state again. He eventually became a resident of Florida. Upon his wife's death he regained custody of his child, but he had some problems with the Florida authorities and moved back to Augusta, Georgia, where the child had to be placed in the Department of Family and Children Services custody, basically a welfare agency. And thereafter, the appellee was arrested on an outstanding bench warrant and sentenced to serve three years. After having exhausted his state remedies, the appellee filed a petition for habeas corpus in the United States District Court for the Middle District of Georgia alleging that the statute violated his constitutional right to travel and was void under both the Equal Protection and the Privileges and Immunities Clause of the Constitution. The district court ruled against the appellee but upon appeal to the 5th Circuit the district court's order was reversed and judgment entered for appellee.
William H. Rehnquist: Ms. Cosgrove, I have some difficulty interpreting the 5th Circuit's opinion, perhaps because of its shortness. It seems to rely at some length on the Morissette case from this Court, which was simply as I had understood it a handbook of how this Court would interpret federal statutes with respect to intent and was not a constitutional doctrine at all. What would you say was the rationale of the 5th Circuit, if there is one?
Carol Atha Cosgrove: Your Honor, I believe the 5th Circuit saw our statute as not having the requisite specific intent which would make it pass muster.
William H. Rehnquist: But why would it have to have requisite... why does it have to have any specific intent?
Carol Atha Cosgrove: It was the 5th Circuit's opinion that without the specific intent the statute would be overly broad. It's our contention, of course, that it is not necessary to have a specific intent for that element of the crime.
William H. Rehnquist: Well, unless you're talking about free speech you don't have an overbreadth challenge here, do you?
Carol Atha Cosgrove: That's correct. I believe only in the First Amendment area has there been a chilling and an overbreadth problem addressed by this Court. The court of appeals reasoned that inasmuch as the appellee did have a fundamental right to travel, that the statute was the subject of strict scrutiny; and secondly, since Georgia has no compelling state interest involved, that the statute would be violative of equal protection. The court of appeals also reasoned that the statute was overly broad in that we had the Uniform Reciprocal Enforcement of Support Act, URESA, which was available to vindicate any of Georgia's interests. Appellant appealed that decision on September 19, 1980, and this Court noted probable jurisdiction on January 26, 1981. There are two issues before the Court today. First, whether parents who commit the crime of child abandonment do have a fundamental right to travel in this instance. And secondly, if such a right does exist, whether Georgia's child abandonment statute impermissibly penalizes that right without being justified by compelling state interest. Now, turning to the first issue, it is Georgia's position that the fundamental right to travel, to migrate, to settle in other states, was never intended to encompass and protect the criminal's right to avoid the consequences of his own misdeeds. Whatever the constitutional rights of criminals in other contexts may be, their rights to full and free travel are attenuated. For example, if a person commits a crime, just leaves the jurisdiction, even without intent to avoid prosecution, he is nevertheless subject to mandatory extradition proceedings. And in addition, many states including Georgia have statutes of limitations which are tolled the instant a person leaves the state, thus dramatically increasing the time period during which a person may be punished for a crime. So, since we do not believe that there are any fundamental rights involved in this case, we submit that it is the rational basis test that should be applied to this statute and that the statute easily passes that test. As this Court has noted, it is the state legislature which is preeminently responsible for defining, and punishing crimes. And we submit that the state legislature could rationally have decided that a person who commits a crime, in this instance the crime of child abandonment and leaves the state makes it much more difficult for the state to bring him to justice, that that person deserves a more stringent punishment. However, even if strict scrutiny test were to be applied, as appellee urges, we submit that the statute would also pass muster under this more exacting standard, for it is not every constitutional infringement, of course, that is barred, it's only those which rise to the level of penalty. It's our position, of course, that this statute in no way penalizes the right to migrate. Indeed, if it has any effect at all upon the right to migrate and settle in other states, that effect is purely incidental and remote. For under the statute a parent is free to move to any state he wishes, stay as long as he wishes, and the statute has absolutely no impact upon him at all unless he has committed the crime of child abandonment. So this statute is unlike provisions which this Court has struck down in, for example, Crandall v. Nevada, a taxing provision that reached everyone who left the state. This statute is narrowly tailored to reach only those persons who have committed a crime.
Byron R. White: Or intend to in the course of leaving the state, or intend to abandon the child later?
Carol Atha Cosgrove: There is--
Byron R. White: This applies whether you abandon after you've left the state or before?
Carol Atha Cosgrove: --On the face of the statute it does, Your Honor. However, it's our position that the appellee really would have no standing to raise that second prong--
Byron R. White: I understand.
Carol Atha Cosgrove: --of the statute since in the facts in this case, he pled guilty.
Byron R. White: I understand.
Carol Atha Cosgrove: Secondly, I might mention that, unlike some of the cases, for example Maricopa County and Shapiro, where this Court was concerned with provisions which addressed themselves primarily to indigents, that this statute does not impact on those persons who are in the blameless but unfortunate situation of poverty. Rather, this statute impacts on the most blameworthy persons, those parents who abandon their helpless children. So we feel that this statute no more penalizes parents who simply wish to go to another state than does the existence of an extradition law or an indefinite statute of limitations.
Potter Stewart: Of course, this whole problem could be solved, I suppose, if the Georgia Legislature simply made child abandonment a felony.
Carol Atha Cosgrove: Well, Your Honor, of course the Georgia Legislature certainly could have done that and many states have, but I think that in not doing so they have recognized the difference in the type of crime, in that the impact upon the child is greater because the likelihood of ever recovering any support is much less when the parent--
Potter Stewart: This is not a support statute; this is a criminal statute.
Carol Atha Cosgrove: --Well, sir, there are two elements in child abandonment. First, one has to desert the child.
Potter Stewart: Yes, but this is a criminal statute. There is nothing in this statute that requires the parent to support. It only punishes the parent for not supporting.
Carol Atha Cosgrove: For not supporting. That's correct, Your Honor. Of course, even if the Court were to see this as somewhat of a penalty upon the constitutional right to travel, it's Georgia's position that the statute is more than justified by our compelling interest in protecting our children and enforcing our criminal laws. And this interest in protecting our children appellee does not even dispute, and it is manifested in at least two other statutes which make this same felony misdemeanor distinction. For example, we have a statute which makes it a felony for a husband to abandon his pregnant wife and leave the state, whereas if he stays in the state, it is a misdemeanor. And similarly, we have a statute which makes it a felony if one is to interfere with the custody of a child who is committed to the legal custody of another, and then to take that child out of the state. And again, interference with the custody of a child within the state is only a misdemeanor. So, I think the Court can see that Georgia is fairly consistent in this design to protect its children. Turning to the interest in protecting our criminal laws, practically speaking, when a criminal leaves the jurisdiction, Georgia, just like every other state, is dependent upon extradition to get that person back to face trial or to serve his punishment.
Byron R. White: Do you have a general statute that makes it a crime to flee from justice, or to abscond, or to leave the state? What if you're under indictment and you leave the state? Is that a separate crime?
Carol Atha Cosgrove: Not to my understanding, Your Honor.
Byron R. White: But isn't that... that's not unheard of, though, around the country, is it?
Carol Atha Cosgrove: There are many statutes, including federal statutes that--
William H. Rehnquist: It could be a breach of a bail condition, I suppose.
Carol Atha Cosgrove: --Yes, sir, I think it could be.
Byron R. White: How about... is that a crime in your state, to violate your bail?
Carol Atha Cosgrove: I'm not at all sure, Your Honor. The felony provision of Georgia's child abandonment statute greatly enhances extradition for... although I'm sure this Court is aware that, technically speaking, it is possible to extradite for misdemeanors under both state and federal law, as a practical matter, the discretion to refuse to extradite for misdemeanors is totally within the governor of the responding state.
Harry A. Blackmun: Of course, if Georgia made this a felony across the board, all these problems would disappear, wouldn't they?
Carol Atha Cosgrove: Perhaps our problems with extradition would disappear, Your Honor. But again, I would say that the Georgia--
Harry A. Blackmun: As would this case disappear.
Carol Atha Cosgrove: --Yes, sir. The appellee would not contend that there was anything wrong with a felony across the board. It's simply our position that the Georgia Legislature need not make that across the board distinction. As I was saying, the discretion to refuse to extradite for misdemeanors is totally within the purview of the governor of the responding state. But the court of appeals has said that Georgia really does not even need to use extradition to satisfy our interest in this case, that we have the provision of URESA, the Uniform Reciprocal Enforcement of Support Act, which can vindicate any of our interests, mainly that we can obtain support for the child, or return the parent to the state. We submit that the court of appeals was in error in this regard for several reasons. I need to explain that all 50 states have in fact adopted some sort of reciprocal enforcement act.
William J. Brennan, Jr.: May I ask, Ms. Cosgrove, if we agree with the argument to this point with you, we don't have to reach this question, do we?
Carol Atha Cosgrove: I beg your pardon, Your Honor?
William J. Brennan, Jr.: If we agree with what you have said up to date, supporting the constitutionality of the statute as not violative of the right to travel, then we don't have to reach this alternative?
Carol Atha Cosgrove: That's correct, Your Honor. This is a less drastic means, argument which the court of appeals--
William J. Brennan, Jr.: But you don't have to rely on it if we agree with your initial argument.
Carol Atha Cosgrove: --That's correct, Your Honor.
Byron R. White: Because then you're just... need a rational basis.
Carol Atha Cosgrove: That's correct, Your Honor. But the court of appeals used as an example of the overbreadth that we did have this alternative means available to us, and I think, quite honestly, that this alternative means simply is not effective for under the version of URESA which has been adopted by approximately 10 states, there is a provision by which an absent parent can totally avoid extradition. He simply submits himself to the jurisdiction of the court of the responding state and agrees to pay some child support. And he never comes back to Georgia, he never sees the inside of a jail. For the remaining states which do not have that automatic avoidance of extradition, many of them nevertheless have a discretionary section which says to the governor of the responding state, basically, if there has not been a URESA petition filed, you don't have to extradite this person. You can require a URESA petition to be filed first. And secondly, if there is an outstanding order of some type in existence and the absent parent is complying with that order, then the governor can also just refuse to extradite that person. I think if we were to follow the court of appeals decision in this case, we could conceivably have a situation where a person abandons his child in Georgia, goes to another jurisdiction, and even if the custodial parent... and I might add, it is usually the custodial parent which files a URESA petition... even if that custodial parent were successful in getting that absent parent into the court of the responding state, it is more likely than not that he could totally avoid extradition by simply agreeing to pay child support. And the difficulty with that... you know, one might say, well, he's paying child support, that ought to settle the problem... the difficulty is that the duty of support which URESA contemplates is not the duty of support which obtains in the demanding state, in Georgia, for example. It would be the duty of support imposable under the laws where the absent parent was, and that's presumed to be the responding state. So we can have a situation where the absent parent comes into court, he agrees to pay child support, he may well be a respected member of the community by now, and the court simply will not impose a large amount of support on that absent parent, and thus really defeating the order of the Georgia court, and also not meeting the needs of the child.
Potter Stewart: Well, again, this is a criminal statute we're dealing with here. And the law that you're discussing and that was discussed by the court of appeals is not a criminal statute, is it? It's a statute to enforce the duty of support by making the parents supporters of the child?
Carol Atha Cosgrove: Yes, Your Honor, and it was the court of appeals opinion that we could simply use this civil statute as a substitute for our criminal statute. It is our position, of course, that the state has a right to define and punish anti social conduct such as child abandonment and that we have a right, if the need be, to put this person in jail or at least to make him think that he is going to.
Thurgood Marshall: Are you interested in support for the child or putting him in jail?
Carol Atha Cosgrove: Well, sir, they're dual interests. Of course we want support for the child. I think the problem with the URESA petition is--
Thurgood Marshall: I thought that was the whole purpose.
Carol Atha Cosgrove: --Well, it's the whole purpose if the person complies with court orders. But as Your Honor is probably aware, a person can say, of course I'm going to comply.
Thurgood Marshall: Well, I understand you that if somebody goes to another state and sends the money back, would you still bring him back?
Carol Atha Cosgrove: I beg your pardon?
Thurgood Marshall: If a man is giving $25 a month support and he goes to Alabama and he sends back $25 a month, you still would make him come back and go to jail?
Carol Atha Cosgrove: Not in that particular instance.
Potter Stewart: That's right. He's not guilty of this offense.
Carol Atha Cosgrove: No, he would not be guilty of child abandonment because he--
Thurgood Marshall: No, I'm telling you, he says he has abandoned the child.
Carol Atha Cosgrove: --Well, there are two prongs, Your Honor.
Thurgood Marshall: Yes, that's what I thought.
Carol Atha Cosgrove: You have to abandon your child, desert your parental duties, and then leave the child in a dependent condition. So if he were complying with a court order regardless of how--
Thurgood Marshall: He violated a support order and he went away and he changed his mind and sent the money back but he didn't come back. Would you still want him?
Carol Atha Cosgrove: --I think he would still be susceptible to this charge, Your Honor, because he needs to follow--
Thurgood Marshall: He needs to be taught a lesson?
Carol Atha Cosgrove: --Well, sometimes, Your Honor.
Thurgood Marshall: It's sometimes called a pound of flesh.
Carol Atha Cosgrove: Well, Your Honor, sometimes it's called a typical drifting absentee father who comes into one court and says, of course, I'll pay, and he pays for a few months and then goes on. And I think--
Thurgood Marshall: You don't ever catch them.
Carol Atha Cosgrove: --It's very difficult, Your Honor, it really is, and I think that is one of the crucial reasons that Georgia needs this felony provision of the child abandonment statute, simply in order to be able to get this type of person back if need be. I think if we were to follow the court of appeals decision in this regard, our right to define and punish antisocial conduct such as child abandonment would be defeated because our right to enforce our laws is simply meaningless without an effective method of bringing the criminal back to trial.
Potter Stewart: Now, Ms. Cosgrove, this statute says that the felony shall be reducible to a misdemeanor. How, under Georgia practice, is it reduced?
Carol Atha Cosgrove: Your Honor, this can either be by the recommendation of the jury and then has to be approved by the judge, or the judge on his own motion can reduce the felony.
Potter Stewart: The prosecutor can't do it? Prosecutor can't do it?
Carol Atha Cosgrove: Not to my understanding. And that provision, I might note, is not unique just to child abandonment, it applies to everything but capital felonies.
Potter Stewart: Shall be reducible to a misdemeanor. And that's in the discretion of the jury or the judge?
Carol Atha Cosgrove: Basically, in the discretion of the judge, Your Honor, because the jury can recommend it but the judge has to approve.
Potter Stewart: Has to do it.
Carol Atha Cosgrove: That's correct. In sum, Your Honor, we think that the Georgia child abandonment statute, particularly the felony division, is absolutely crucial to the enforcement of Georgia's interests in protecting her children and in enforcing her criminal laws. We submit that the court of appeals decision in this case was clearly erroneous and should be reversed. Thank you.
Warren E. Burger: Mr. Bonner.
James C. Bonner, Jr.: Yes, sir. Thank you, Mr. Chief Justice and may it please the Court: I want to get one thing straight, I guess, at the outset, and that is that we don't necessarily contest the opening principle, I think, that the state started its argument with, that is that there is nothing in the right to travel which protects a parent or an accused from the consequences of his misdeeds. That's not our argument at all, and that's a mischaracterization of it. I will concede at the outset that there is probably, in fact there is certainly a valid area here, a general area here of application of the state's police power. The state can reach fugitive parents, it can proscribe that conduct, it can reach parents who use their right to travel across a state line to frustrate the state's interest, to compound an offense. But this isn't that kind of statute, and the existence of a valid area for operation of that kind of statute don't save this one. We need to look at the... if this were that kind of statute, then what she said about there being a reasonable connection and this being subject to the rational connection test would probably be valid. But this is not such a statute. The question before this Court as a preliminary matter is how this statute by its terms, on its face, affects travel.
William H. Rehnquist: I think the question before the Court, before you get to that, is, what does the 5th Circuit's opinion mean? Do you understand why they cited Morissette?
James C. Bonner, Jr.: Not completely, Your Honor. I don't think, I don't think Morissette necessarily has any basis here, but I think I can answer your question if you can let me get my next thought out.
William H. Rehnquist: By all means.
James C. Bonner, Jr.: Revive it. As I say, our question here is how this statute affects the right of travel. And if you look at it, any travel triggers the statute. The reason... as the state has conceded, the reason for the travel is totally insignificant. The time of the travel is totally insignificant. It doesn't make any difference whether the man is accused before he crosses the state lines or whether he becomes accused subsequently, although for that subsequent class, obviously, you have that privileges and immunities problem, which we don't have any standing to raise. But it's important to look at that aspect of the statute because it shows what the statute does. This isn't a fugitive statute. Bobby Helms could have crossed the state line to visit his sick mother in Alabama and as long as he was subject to being charged before or after with child abandonment, he would fall under this special felony jeopardy. There is not even any requirement in this--
William H. Rehnquist: What's the matter with that?
James C. Bonner, Jr.: --Well, quite a bit is the matter with that, Your Honor, because the right to travel is a constitutionally secured right.
William H. Rehnquist: Well, but certainly someone who is subject to not leaving the state under conditions of bail can't exercise his right to travel to visit his sick mother in Alabama.
James C. Bonner, Jr.: Yes, sir, that's correct, but that person is accused, the restriction on his right to travel, for example, could be relieved by a court, it could be relieved... there are adjustments.
William H. Rehnquist: There are all sorts of restrictions on right to travel.
James C. Bonner, Jr.: Yes, sir. But this, again, is not a statute which applies to someone who stands accused. Bobby Helms when he left the state was not accused. At least... the record is not clear on that, but he certainly wasn't arrested and he certainly didn't know he was accused until he came back and was arrested. Yes, but the crime isn't committed unless he's already abandoned the child. Well, no, sir, it can be committed subsequently.
John Paul Stevens: He could migrate. Well, I know, I know, but in this case, the claim is that he abandoned the child and then left the state.
James C. Bonner, Jr.: That's true.
Byron R. White: Well, that's what we're talking about, whether that's unconstitutional, to make the abandonment a felony if he's left the state.
James C. Bonner, Jr.: In effect, what you are doing is inferring or raising, the statute I should say is doing, is making a presumption, erecting a presumption that any parent who leaves the state for any reason without even any nexus to the offense of abandonment--
Byron R. White: Well, do you think it would be... I suppose you would say it would be just as unconstitutional if they made it a misdemeanor to abandon the child and another misdemeanor to leave the state after having abandoned the child?
James C. Bonner, Jr.: --No, sir, there would be no equal protection problem there.
Byron R. White: Why?
James C. Bonner, Jr.: It would be the same difference.
Byron R. White: It would certainly bear on the right to travel, wouldn't it? If you left the state you've committed another misdemeanor.
James C. Bonner, Jr.: Oh, I see what you mean. You're talking about a flight type of thing. Yes, sir, that's true. But obviously you couldn't have that kind of statute without some intent element, you couldn't... Georgia could not say who--
William H. Rehnquist: Why would you have to have an intent element?
James C. Bonner, Jr.: --Well, you've got to at least have some connection. Intent is one way of connecting the exercise--
Byron R. White: The statute says, if you abandon the child, you have committed a misdemeanor. Then it says, and if you leave the state after having abandoned the child, you've committed another misdemeanor. Period.
James C. Bonner, Jr.: --Actually... Actually, Your Honor, the statute said, a misdemeanor to abandon your child, and/if the parent leaves the state it's a felony. So it's not--
Byron R. White: Well, I know, but you would make the same argument if there were two misdemeanors.
James C. Bonner, Jr.: --Well, no, I don't believe we would. Obviously, if you had a separate statute dealing with flight to avoid prosecution--
Byron R. White: Yes?
James C. Bonner, Jr.: --that's an encumbrance on the right to travel, and admittedly.
Byron R. White: But a valid one.
James C. Bonner, Jr.: That's a valid one. And there are valid ones. And there are invalid ones.
William H. Rehnquist: But you insist that there be an intent requirement?
James C. Bonner, Jr.: No, sir, no. All I'm saying is that intent is one way to confine the intrusion on the right to travel. Purpose would be another way. Some sort of nexus... I believe that Arkansas statute or the Rhode Island statute that says he commits the offense by leaving the state. But here what you've got is the exercise of a constitutionally secured right which for any reason, for any purpose, and, frankly, any time, triggers the special felony jeopardy. It is like... I don't think you'd have any trouble with a state statute here which said, burglary is a felony carrying a ten year sentence but if the defendant doesn't confess, it carries 20 years. Obviously, that's an extreme example, but what you've got here--
Warren E. Burger: Let's alter that a little bit. Instead of what you've suggested, that if he flees the state for the purpose of avoiding prosecution, the penalty will be doubled?
James C. Bonner, Jr.: --No problem whatsoever, Your Honor. None whatsoever. I don't think, frankly, that there would be any problem if you had a Rhode Island-type statute where it says, commits child abandonment by leaving the state. But the problem here is that you've just simply got an exercise of the right to travel which triggers it, and it's triggered even before the defendant--
Thurgood Marshall: How does this affect his right to travel? He could go to Russia.
James C. Bonner, Jr.: --Well, now, it might not--
Thurgood Marshall: But if he took care of those children. Isn't that right?
James C. Bonner, Jr.: --Yes, sir.
Thurgood Marshall: And he wouldn't violate any statute of Georgia?
James C. Bonner, Jr.: That's right.
Thurgood Marshall: So how does this case involve the right to travel?
James C. Bonner, Jr.: Same way Aptheker did. Mr. Aptheker could have traveled anywhere too. All he would have had to do is renounce his associations.
Thurgood Marshall: Come on. There's no connection.
James C. Bonner, Jr.: Well, let me back up, too, because you've got to, you've raised what is really the next issue, whose right to travel is affected here?
Thurgood Marshall: But it doesn't affect it. As a matter of fact, this man traveled twice.
James C. Bonner, Jr.: Well, Your Honor--
Thurgood Marshall: So, he didn't... the first one didn't even bother him.
James C. Bonner, Jr.: --You're assuming--
Thurgood Marshall: Didn't he travel twice?
James C. Bonner, Jr.: --You're assuming a couple things.
Thurgood Marshall: Do I assume that he traveled twice?
James C. Bonner, Jr.: Oh, he traveled abundantly.
Thurgood Marshall: Yes, he was a traveling man.
James C. Bonner, Jr.: Even more when he was in the Army. But the question is, whose right to travel is affected here? Where you've got this kind of broad intrusion on a constitutionally secured right, it's everyone's right to travel, or at least every parent in this particular case.
Thurgood Marshall: It doesn't involve my right to travel because I haven't abandoned any children.
James C. Bonner, Jr.: No, sir, but if you were a poor mill worker in Griffin, Georgia--
Thurgood Marshall: But I'm not.
James C. Bonner, Jr.: --No, but I'm trying to tell you who's... I'm trying to answer the question of whose right to travel it affects. Where you're living on a marginal income, you separate, there's a real question of whether or not there's adequate support being given. That particular person's right to travel is chilled by this statute. He's under a special jeopardy. He may want to visit--
Thurgood Marshall: It is because he's poor?
James C. Bonner, Jr.: --That's true. The poor are particularly--
Thurgood Marshall: Do you think a poor man would be traveling twice?
James C. Bonner, Jr.: --Poor and he traveled twice.
Thurgood Marshall: Yes, he's poor.
James C. Bonner, Jr.: This is exactly the situation--
Thurgood Marshall: Did he borrow the money or something?
James C. Bonner, Jr.: --I'm sorry. What, Your Honor?
Thurgood Marshall: Could he have used that money he used to travel to pay for his children?
James C. Bonner, Jr.: He didn't go far. It was a Greyhound bus ticket. I suppose he could have. But this is comparable to the situation you had in Zablocki, with its broad intrusion upon the right to marry. This Court didn't stop to look into the depth of this fellow's pocketbook or into the justifications he had. Your own opinion, Justice Marshall, went ahead and talked about the people who dwelt on the margin, whose rights to travel were chilled... I mean, whose rights--
Thurgood Marshall: Well, if my opinion said what you think it says, why in the world do you think I'm asking these questions?
James C. Bonner, Jr.: --I don't know. I was--
John Paul Stevens: Mr. Bonner, can I ask you?
James C. Bonner, Jr.: --Yes, sir, Justice Stevens.
John Paul Stevens: I'm not sure I understand your position on one thing. Assume this statute said, if a person abandons a child, and thereafter, for the purpose of avoiding prosecution, leaves the state, it would be a felony; otherwise, a misdemeanor. Would you say that was constitutional?
James C. Bonner, Jr.: I don't see any problem whatsoever with that.
John Paul Stevens: So, your whole argument turns on the absence of intent?
James C. Bonner, Jr.: Not necessarily. This is echoing what Justice Rehnquist asked. Not necessarily on the absence of intent; on the promiscuous use this statute makes of the right to travel, the fact that it is--
John Paul Stevens: Well, it's promiscuous in the sense that it applies when there's no intent.
James C. Bonner, Jr.: --No intent, no purpose, no connection with the offense. In pure happenstance.
Potter Stewart: It would be just as though a state should make it criminal offense to travel?
James C. Bonner, Jr.: I'm sorry, Justice Stewart?
Potter Stewart: Well, if a state made it a criminal offense for anybody to leave Georgia, that would be an extreme example of what you find invalid about this case?
James C. Bonner, Jr.: And it would not analytically be different from this case.
Potter Stewart: That's correct.
James C. Bonner, Jr.: That's it exactly.
John Paul Stevens: Except that it would be after having committed an offense?
James C. Bonner, Jr.: That's what we've got here. Of course, every parent is subject, theoretically--
Potter Stewart: But the reason this is a felony, not a misdemeanor, is because your client left the State of Georgia.
James C. Bonner, Jr.: --Because he exercised a right the Constitution gave him.
John Paul Stevens: That's all he did. After having committed an offense.
James C. Bonner, Jr.: Well, it happened. But you see, they had to drag him back and establish his guilt of that offense.
John Paul Stevens: After having committed the first element of a two element offense? But the reason it's a felony, not a misdemeanor, is because he left the State of Georgia. Had he not left the State of Georgia, it would be a misdemeanor.
James C. Bonner, Jr.: If he had run from Phenix City down to Tybee Light and hidden out in the dunes down there, he'd be guilty of a misdemeanor.
Warren E. Burger: I thought you had previously conceded that if he'd committed any crime and then left the state to avoid prosecution, they could double the penalty?
James C. Bonner, Jr.: Yes, sir. But that's not this kind of statute. Let me... I'm sorry.
Warren E. Burger: Not the precise statute, but you tell me what's the distinction?
James C. Bonner, Jr.: I'm sorry, Your Honor. Maybe, if I did say that, I somewhat misunderstood the hypothetical thrown at me. I think, even in that situation, you would have to have some nexus between leaving the state and intent or purpose--
Warren E. Burger: To avoid prosecution.
James C. Bonner, Jr.: --No problem. That's a nexus that's sufficient, there, again. This isn't that kind of statute. This says nothing about why he leaves the state. If it did, we wouldn't be here. We would not get by the rational connection test here.
John Paul Stevens: What if a statute said that it shall be a crime to escape from prison; shall be a misdemeanor, say, to escape from prison? And if after escaping, if, for any reason, you leave the state, even if not for the purpose of avoiding prosecution, that shall be a felony. Would that be constitutional?
James C. Bonner, Jr.: That's a much tougher question, Your Honor.
John Paul Stevens: How's it different?
James C. Bonner, Jr.: One thing that makes it different is... as a matter of fact, maybe that's a welcome question for me. In that particular case you've got somebody whose liberty interests have been circumscribed because he's been convicted. And that's the difference between Bobby Helms and your hypothetical. You've got... our situation, this particular statute, has an impact upon parents who, at the very least, are presumptively innocent of abandonment, who may not even have been charged with abandonment.
Warren E. Burger: Yes, but the reason they may not have been prosecuted is that they left the state and couldn't be reached.
James C. Bonner, Jr.: Oh, well, Your Honor, I think later the problem of their being reached is going to dissipate. That's not necessarily so.
William H. Rehnquist: Do you think Georgia could enact a "blue sky" law making it a criminal offense to misrepresent something in a prospectus about a security and completely omit any requirement that the misrepresentation be intentional?
James C. Bonner, Jr.: Yes, sir. If you're asking me whether you can have strict liability offenses, you certainly can. But you can't when you are triggering that offense on a constitutionally secured right. I suppose here you're vaguely talking about a right to free speech or something like that, but I don't think that's really quite comparable. I don't see any problem.
William H. Rehnquist: Well, there are an awful lot of crimes that have emerged in the past 50 years that don't require any intent at all.
James C. Bonner, Jr.: Yes, sir. But I don't think, Your Honor, that you're going to have an easy time finding some which turn on constitutionally secured right without this Court primarily coming in and saying that when you've got it turning on a constitutionally secured right, you've got it... have a narrowly drawn statute that's got to be carefully tailored to address the specific governmental interest.
Potter Stewart: You'd have no case at all, Mr. Bonner, would you, if people who abandon their children and didn't leave the state were also guilty of felonies?
James C. Bonner, Jr.: No problem at all. The state can make that judgment--
Potter Stewart: You'd have no case at all?
James C. Bonner, Jr.: --No case at all. We wouldn't be here.
Potter Stewart: So your case depends upon the fact that other people are treated more leniently?
James C. Bonner, Jr.: That's right. In effect, Georgia has made a judgment that for the same offense people who would happen to exercise their rights to travel are guilty of a greater offense, regardless of whether they in fact are, regardless of whether they are in fact trying to flee the jurisdiction and not visit their sick grandmother or to seek educational benefits in Alabama.
John Paul Stevens: Do you suppose it would be constitutional for Georgia to pass a statute that said, if a parent abandons a child, that parent may not leave the state?
James C. Bonner, Jr.: Let me run that by. I think that would... yeah, I suppose Georgia probably could.
John Paul Stevens: What they've done here is something less extreme. They've said, if you leave you get a more severe penalty. Or if a parent abandons a child, he may not leave the state. If he violates this restriction he shall be guilty of a felony.
James C. Bonner, Jr.: Our problem here with this particular statute is its impact upon a broad group of people. I think if you've got, if you had a statute that's saying one who is charged with anything may not leave the state, that would be perfectly valid, and that's sort of what I understood your question to say. But here we--
John Paul Stevens: No, he's not charged. One who abandons his child... and I guess there's an intent element in the abandonment offense itself... may not thereafter leave the State of Georgia.
James C. Bonner, Jr.: --Okay, I'll back up. No, Georgia couldn't.
John Paul Stevens: Georgia couldn't do that?
James C. Bonner, Jr.: No.
John Paul Stevens: That's not an equal protection problem, that's just a flat violation of the right to travel, to impose that restriction on a person who is guilty of a misdemeanor. But you say he could do it if he escapes from prison. You'd say, well, you'd say, he can't leave the state.
James C. Bonner, Jr.: But there you've got... one who escapes from prison knows he escaped from prison.
John Paul Stevens: Well, by hypothesis, here, one who abandons a child knows he's abandoned the child.
James C. Bonner, Jr.: Not necessarily, Your Honor. There's a great difference there. But the other thing is that at least you've got a--
John Paul Stevens: Well, he's not guilty unless he willfully and voluntarily abandons the child.
James C. Bonner, Jr.: --In your hypothetical, you've got a carefully circumscribed group on which the statute impacts, and we don't have that here.
John Paul Stevens: Those who willfully abandon their children.
James C. Bonner, Jr.: Well, here you've got--
John Paul Stevens: Same group in this case.
James C. Bonner, Jr.: --You've got parents. Any parent who's presumptively innocent, who hasn't been convicted, is subject to jeopardy under this particular statute.
Warren E. Burger: This is true of a person under indictment who flees the state. He carries the presumption of innocence right with him across the state border.
James C. Bonner, Jr.: And the restrictions on him are reasonable, but what you've got--
Warren E. Burger: Why are they more reasonable or less reasonable than with the misdemeanor that Justice Stevens postulated to you?
James C. Bonner, Jr.: --Well, because that's a reasonable intrusion onto the right to travel, vis a vis the state's interest in having him there and prosecuting him. I don't really see any analogy there. But this, again, is the same situation as if Georgia had isolated, say, the right to trial by jury and made that there a special penalty of death, as in Jackson v. United States; or attaching a poll tax to voting in a federal election, as in Harman v. Forssenius. This is what Georgia has done, and the reason that this case falls in the shadow of those authorities is again basically because of the wanton use Georgia makes of interstate travel as an element of this offense. Wanton, because it has no nexus, has no intent, is not confined by any kind of purpose, need not have any relationship at all under that statute to the state's interest.
Byron R. White: Do you question at all the authority state to criminalize the failure to support a child?
James C. Bonner, Jr.: No, sir, none at all.
Byron R. White: Even though it's criminalizing not paying a debt, in a sense? In order to--
James C. Bonner, Jr.: Well, I have no qualms about that. I'm here because my client's been branded a felon and not a misdemeanant.
Byron R. White: --Yes, I know, but no part of your case questions at all the authority of the state to criminalize?
James C. Bonner, Jr.: No, sir, I think there are a lot of policy reasons why not, and I think that's why you've got URESA, because of the judgments that the state made that this kind of problem is better approached civilly.
Thurgood Marshall: You agree that the jury could have made it a misdemeanor?
James C. Bonner, Jr.: Yes, but that's just entirely discretionary.
Thurgood Marshall: Oh, I see, you agree to that? They could have done that?
James C. Bonner, Jr.: Yes, sir, they, could have done it. But it would be a judgment that would be made without any guidance, without any--
Thurgood Marshall: But they could have done that in your case?
James C. Bonner, Jr.: --Yes, sir. They certainly could. Let me jump ahead to the strict scrutiny analysis which I hope we reach somewhere. But if you figure that we've got a constitutionally protected right to travel here, then under the familiar formulas of this Court, it would fall strict scrutiny, and I don't mean to repeat it for your edification, but for mine, that would mean that the state would have to show that it's reasonably necessary to promote a compelling state interest. The state basically, their interest here comes down to extradition. When you look behind everything they can say about the welfare of the child and about the enforcement of the criminal law, on both avenues it boils down to aiding extradition. But the only... the thing is that that's not necessarily compelling interest because we've got the Extradition Clause of the Constitution, we've got the Federal Extradition Act, we've got URESA, we've got uniform reciprocal... whatever it is... uniform criminal extradition act. All of these serve, they completely serve that interest. As a matter of fact, under the last two, Bobby Helms need not ever have even been in Georgia, much less have been a fugitive from Georgia. Under all law, the caliber of the crime, the fact that it's a misdemeanor, not a felony, doesn't prevent extradition. He's extraditable under all of them. Elevating it to a felony doesn't apparently aid the state's interest one bit except for the argument they make that governors will treat this offense more seriously and everything if it's a felony, which is a pretty good argument if you want to make the whole crime a felony, but it's not a pretty good argument for the distinction. The state fails on the necessity aspect of that strict scrutiny test. Looking at it simply under URESA and everything else, it's just not necessary, and it can't promote it. Even if it were a felony and the state proceeded under URESA, they would still encounter those relief provisions that the state talked about. A judge in Alabama could still... or, a judge in another state, by entertaining an action brought by the father over there, could completely bar extradition under URESA, regardless of whether it's a felony or misdemeanor. But in any event URESA is designed to be a supplementary kind of extradition procedure, not one that necessarily preempts. I forget exactly what section of URESA it is, but the state's perfectly free to proceed under all its other extradition powers. And again, under all of those extradition powers whether the thing's a felony or a misdemeanor, they still run into the governor's discretion. And making it a capital felony is not necessarily going to elude that governor's discretion.
Byron R. White: Well, what about the initial interest of the state in keeping the fellow within reach so that they can collect child support? Why isn't that a compelling interest in itself?
James C. Bonner, Jr.: Well, because in effect it attaches a special penalty to any parent's right to travel--
Byron R. White: Well, the right to travel--
James C. Bonner, Jr.: --whether he's going to come back, whether he's not going to come back.
Byron R. White: --All right, accepting for the moment the fact that it burdens the right to travel, then there must be a compelling interest to justify it, and what's wrong with keeping him around so that support may be collected?
James C. Bonner, Jr.: Oh, maybe I should back up. Nothing would be wrong with that. That would be--
Byron R. White: Well, I know. Why isn't that a compelling interest?
James C. Bonner, Jr.: --Well, that might be how the Chief Justice's question a minute ago makes sense about one under indictment can't leave the state. I'm sorry. I'm sure if anyone's not making sense that it comes from here, not from there. No, I mean, that's how his example is explicable, because, you know, that kind of restriction would completely and carefully serve that particular interest.
Potter Stewart: Although Georgia, surely Georgia could not make it a criminal offense for any Georgia parent to leave the state?
James C. Bonner, Jr.: No, it couldn't. And as a matter of fact, it couldn't... you can carry it somewhat further, and say, any parent who wants to leave the state's got to stop at the state border and post bond for the support of his children.
Warren E. Burger: On the other hand--
James C. Bonner, Jr.: And then you'll have Alabama on the other side saying, if he brings his children in, he's got to post bond to make sure they don't become public charges.
Warren E. Burger: --Are you suggesting the state couldn't adopt a felony statute that they couldn't leave the state if they left dependent minor children behind them?
James C. Bonner, Jr.: I don't think the state could.
Warren E. Burger: Well, what's the statute except that? That's what this statute is, isn't it?
James C. Bonner, Jr.: That's exactly why the statute is wrong.
Warren E. Burger: Yes, but you say they can't--
James C. Bonner, Jr.: Is bad.
Warren E. Burger: --That's your reason for saying it's bad?
James C. Bonner, Jr.: Yes, sir. That Georgia couldn't do that. This is a different degree of intrusion, but it's exactly the same kind of pattern of intrusion. Here, essentially, Georgia has taken a constitutionally secured right, the right to travel, and they've made the degree of an offense turn upon it. They' made the difference between a felony and a misdemeanor turn upon it, and they've made it turn upon it. Bobby Helms couldn't come into court and say my sick grandmother was over there and I had to visit her.
John Paul Stevens: Mr. Bonner, do I understand your argument really doesn't rest on the fact that it's an abandonment case? Say it was a case involving it's a misdemeanor to shoot wildlife, shoot a bird or a deer or something like that, but if one does that and thereafter leaves the state it's a felony. You'd make the same argument with that kind of statute?
James C. Bonner, Jr.: Yes, sir.
John Paul Stevens: Same thing? Yes.
James C. Bonner, Jr.: Exactly. I think while it's silent I'll sit down.
Warren E. Burger: Do you have anything further?
Carol Atha Cosgrove: I don't have anything further.
Warren E. Burger: Thank you, counsel. The case is submitted.


Earl Warren: You proceed.
Bessie Margolin: I'll proceed with the next case.
Earl Warren: You can explain now Ms. Margolin.
Bessie Margolin: This case if the Court please, involved the question of where the time spent by a knifeman in a meatpacking plant sharpening the knives that they use in their meat-cutting job is a part of a knifeman's principal activity rather than preliminary and postliminary under Section 4, the Portal Act, and whether it's still compensable despite the provision of the Portal Act. The Tenth -- the Ninth Circuit held that it was -- there was non-compensable and was -- because it was preliminary and postliminary despite its recognition that it probably and might be anyway an indispensable to the performance of their productive work. The evidence shows indisputably and respondent doesn't dispute that the knives must be sharpened daily in order for them to be of any practical value in the work. As stated by one witness, they must be razor sharp and unless he had a sharp knife, he couldn't do a good job. I don't believe there's any serious question that the sharp knife is absolutely indispensable to be proper efficient or any adequate performance of the meat-cutting job.
Speaker: The reason I asked earlier.
Bessie Margolin: Some of the knives of -- mainly, the knives that -- theoretically, they are the employee's knives. He buys them, most of them from -- these are the smaller knives. He buys most of them and when I say small, I'm speaking relatively. To me, they look quite large. I don't know if they sent them up in the exhibit, but they were placed in exhibits in the record, but they are relatively smaller knives and they purchased most of them at cost from the company and the company furnishes them the cost. I think they cost around a $1.5, $1.85 a piece on an average, but that by the time the employee puts all the time into sharpening and I'm going to show you sharpening them, I can assure you he pays a lot more for those knives. The -- they also sharpen some of the company knives, although there's no requirement that they sharpen the company knives on their own term if there is with respect to sharpening. They're so-called -- they're individual knives.
Earl Warren: Do they have their choice of using their own knives or company knives? Is that the practice?
Bessie Margolin: No, the company knives that, Mr. -- Mr. Chief Justice, the larger knives and the more heavy equipment so that they all have their individual knives. They're -- they have them and they -- they sharpen their own knives, and the testimony is that they had individual taste and they prefer to sharpen their own knives. They -- this is done through use of an emery wheel and wet stones and various tools which the company does furnish the tool room and the tools. And the employees, although there is evidence that the employees were not required to use the company tools and room, the employees generally did use it. Most of them did not have that equipment for sharpening their own knives. Theoretically, too, the employees could take their knives home and sharpen them. That was a pure theory. It was very rarely done and I think there were few occasions mentioned where the employee had some custom work and he took some knives home, but there were very good reasons why they wouldn't take them home from sharpening. For one thing the knives could dull. They have their edges dull just in the movement to and from the home to the plant. And also, it was somewhat dangerous to carry these knives around away from the plant and going into traffic. In addition to that, as one employee testified, it took -- would take as long to wrap it up to make it safe to carry it as it would, just stay and sharpen it almost. It wasn't worth fooling with taking it home. So, then, as a practical matter, they -- they could not do this sharpening work at home. With the requirement that the knives be razor sharp, it had to be done immediately prior to the -- the assembly line work. Now, the Tenth Circuit, I think, did not take issue with the fact that this is an indispensable and integral part of -- of meat-cutting work.
William O. Douglas: I think it's the Ninth Circuit.
Bessie Margolin: The Ninth Circuit, I beg your pardon. And I -- I don't understand that -- that respondent disputes that. The Tenth -- the Ninth Circuit's reasoning was that anything before the scheduled work, any activity, preparatory activity before the scheduled workday or after the scheduled workday was preliminary -- a postliminary within the intent of Section 4. As I have already stated in -- in the argument of the preceding case, we think the terms of the statute despite Mr. Justice Frankfurter's objections, as well as the legislative history, plainly show that the Section 4 does not make the decisive consideration whether it's pre-shift or post-shift. And I will continue with the legislative history because there is much more of that than we could argue I suppose forever on the -- on the terms of the statute on its face, but the legislative history where there is more opportunity to -- to state the intent in detail than there is on the face of the statute makes it clear beyond doubt that this type of activity was not intended to be made non-compensable whether it was performed before the work shift or after the work shift, as well as performed during the day. The Senate Report gave two examples specifically of what was intended by principal activities, and those two examples we submit clearly indistinguishable from the knife-sharpening of the meat cutters. The first example was the oiling, greasing and cleaning of machine by a lay operator.
Hugo L. Black: What read -- what page is that on the brief? Do you know?
Bessie Margolin: That appears on page 14 of our brief. They're -- they are quoted. Those two examples are quoted, and is "cutting, installing a new cutting too" and then the, “getting machines in readiness in operation" was the second example. And the -- in giving those examples, Senator Cooper later pointed out in explaining that on the floor of the Senate that those examples were -- showed very clearly that Congress was not excluding pre-shift and post-shift activity because both of those examples are obviously pre-shift and -- and post-shift. Now, counsel in the Steiner case, brushed it aside, the Senate --
Stanley Reed: Not a garment worker, was -- is it, a garment worker?
Bessie Margolin: I beg your pardon, Justice Reed.
Stanley Reed: The garment worker was in its --
Bessie Margolin: The garment worker in a textile mill who gets the machines in readiness.
Stanley Reed: That who is required to report 30 minutes?
Bessie Margolin: Yes. Well, she was -- well now -- and that, that's some interesting colloquy that followed there where someone asked Senator Cooper if he had any special reason for using 30 minutes. Would it make any difference if it was 20 minutes, 15 or 5 minuets and Senator Cooper said explicitly, “No, I just took the term 30 minutes but the time element has nothing to do with it." That would be the principal activity.
Stanley Reed: Well, now, I'm thinking that that's within this particular worker. The garment worker is required to be there in her -- in her day and starts in, is it?
Bessie Margolin: Well, the question is what you mean by required. If -- if --
Stanley Reed: Order, it must be the order he picked up.
Bessie Margolin: Well, if this -- if this -- if the evidence here shows that if these knifemen didn't have their knives sharpened and ready for the production line, they were fired.
Stanley Reed: I'm only asking about this section, the second illustration on page 14.
Bessie Margolin: Well, the second one is not -- obviously, it's not as close in point as the first, but subsequently, Senator Barkley put almost this precise case to -- to Senator Cooper, and he put the case of the sharpening and preparing the tools which he, the employee himself or his colleagues are -- are to use when the factory opens. And he referred particularly to performing these activities in the morning prior to the scheduled work shit, and he asked explicitly, “Is that a part of his principal employment or is that preliminary or if he is required to do it after the close of the shop in the afternoon, is that part of the postliminary work?” Now, this colloquy appears on page 18 of our brief. And to which Senator Cooper answered and this is quoted on page 18 of our brief. Let me say that on page 48 of the report of the Committee, that exact situation, one is merely comparable to it as probable -- as probably could be cited if discussed and that's the one of -- of sharpening, cut -- putting a new cutting tool into the lathe machine, and under the circumstances that if the intention of the framers deal that such activity shall be compensable as part of the principal activity.
Harold Burton: Was that -- was referenced to appearing and sharpening and preparing their tools before they got into what the jury considered a principal activity?
Bessie Margolin: That's exactly it. That's the one that -- that's the example Senator Barkley was putting. Now, respondent thinks to minimize the effect of this example by quoting from a statement by Senator Barkley that followed which -- where he said that he had a strong -- he -- he was -- might be mistaken, but he got the strong impression from the language of the -- of the Act and it wasn't the language of Mr. Frankfurter that is now in the Act but some other language. He got this strong impression from the language that -- that type of activity might be considered a Portal-to-Portal activity under the -- it was then a definition of Portal-to-Portal activity the Act, in the bill. But in addition to the fact that Senator Cooper had unqualifiedly corrected Senator Barkley, and in addition to the fact that Senator Barkley admitted that he hadn't carefully analyzed the Bill which obviously Senator Copper had done. In addition to those two factors, the confusing definition of portal-to-portal which -- to which Senator Barkley was referring when he say he was confused, was omitted from the Act as enacted. And what's more in the bill that shows that definition was simply in the -- the Section 2 part of the bill and not in the -- latter part of the bill. So that Senator Barkley's remark at that point is wholly irrelevant in -- into tracks not at all from the meaning of principal activities as to be related to this precise example of sharpening tools.
Felix Frankfurter: I -- I suppose that even a confused commentary by legislative is not criminal. I --
Bessie Margolin: Well --
Felix Frankfurter: -- suppose that legislative history doesn't waive whether the defendant ever made the speeches, was confused or not. That would soon further complicate our difficulties here to decide whether he may talk (Inaudible) --
Bessie Margolin: Well, except that Senator Barkley saved us that trouble by saying that he -- he might well be mistaken and that he be glad to be corrected and Senator Cooper did correct him.
Felix Frankfurter: But then (Inaudible) to refine the speech, and that's what I'm talking about.
Bessie Margolin: Well, he called it fine -- a fine distinction.
Felix Frankfurter: A fine distinction becomes the principle of law.
Bessie Margolin: Well, I think that's not -- that's not rare in --
Felix Frankfurter: That's very rare to a situation like this. They're making these questions of fact --
Bessie Margolin: I -- I think that --
Felix Frankfurter: (Inaudible)
Bessie Margolin: -- it's to be expected in the statute of this generality which has -- has -- applies to so widely varying situations.
Felix Frankfurter: That's why --
Bessie Margolin: They're bound to be some -- some part of the question.
Felix Frankfurter: And that's why the -- the courts do is important to us (Inaudible)
Bessie Margolin: Well, except that -- of course, we would -- we would be glad to adopt that, the purposes of the Steiner case.
Felix Frankfurter: Yes, but that is supposed to be in it.
Bessie Margolin: But we -- we show -- I think that it appears that if -- you can adopt that obviously because otherwise you get -- you get a different result from precisely the same facts where uniformity is important.
Felix Frankfurter: After saying this probability.
Bessie Margolin: Well --
Felix Frankfurter: Define different?
Bessie Margolin: I would say that knife-sharpening is certainly every bit as part of a principal activity as --
Hugo L. Black: (Inaudible)
Bessie Margolin: -- as changing clothes and -- and for the purposes of -- of the hazards in the Steiner case, and I think they're different in the result and this is, of course, I think, why we are here in this Court. The differences in the result is because the Court took, not because they -- of the question of whether it was principal activity really, an integral part of the work. I don't think that is what caused the difference. I think the difference that caused by their basic a legal approach, they -- they applied different legal criterion. The Ninth Circuit assumed that any activity, any preparatory activity outside the scheduled workday was preliminary and postliminary and I think that is the sole explanation for the difference in results here.
Felix Frankfurter: That isn't the way I read the (Inaudible) He rejected the suggestion that all preliminary, he didn't say, “No preliminary and no postliminary.” He rejected the suggestion that all preliminary which are integrated and related to the principal activity are constrained, didn't he?
Bessie Margolin: Well --
Felix Frankfurter: That's what he said.
Bessie Margolin: Well, we don't say that all -- all preliminary, all --
Felix Frankfurter: They were (Voice Overlap) --
Bessie Margolin: -- prepared to -- well, I think the Court of Appeals made it quite clear that -- that even if this one integral part and indispensable to the principal act to the meat-cutting job in the production line activity, they would -- they felt that it would be preliminary and postliminary because --
Felix Frankfurter: I'm suggesting -- I'm suggesting the legal criterion which he stated is predicated and said this may lead to another part of (Inaudible) -- lead to a different conclusion.
Bessie Margolin: Well, it's true that this --
Felix Frankfurter: And those conflict, though inevitable as you say where you got a legislation like this as though a diversion on the courts and not make some administrative agency the determiner of the facts in a different case.
Bessie Margolin: Well, I don't think so many conflicts are inevitable as -- as would occur, not merely so many would occur if this Court never would take any of these cases. I assure you your decision have sold many -- many problems of course and prevented many conflicts.
Felix Frankfurter: That's a result of --
Bessie Margolin: Now, they're bound to be -- they're bound to be with the varying facts. They are bound to be of many apparent conflicts.
Felix Frankfurter: And it also let the legislation --
Bessie Margolin: Right.
Felix Frankfurter: -- which followed and it should have gone to from my point of view and did go that way because -- well, the case of this Court will do it for the purpose of --
Bessie Margolin: Well, because they have varying opinions on that. We always have varying opinions on that and still get them.
Felix Frankfurter: But is that the varying opinions on the fact that the constructions given by this Court let the Congress go the other way and that they --
Bessie Margolin: Well, the -- the Congress -- the Congress has it on the other way on many of what I can --
Hugo L. Black: (Voice Overlap) Is there anything wrong with the fact that this Court construed legislature? It construed and they bring up the difference and Congress wants to change it, make it wrong (Voice Overlap) --
Bessie Margolin: I think I heard --
Hugo L. Black: -- judicial and legislative process.
Bessie Margolin: I think I heard one of the justices on this Court say once that there wouldn't be much need for lawyers if that wasn't mostly our job, if that job was taken away from us.
Felix Frankfurter: The only (Inaudible)
Bessie Margolin: Obviously -- obviously, a great part of -- of the work of this Court must be to construe the statutes of Congress and the language to use that kind.
Stanley Reed: Ms. Margolin, you -- you're -- the Wage-Hour to -- bring these actions in order to enforce his views, does he not?
Bessie Margolin: That's right. He issues the interpretation and then brings the acts to -- to enjoin violation.
Stanley Reed: (Voice Overlap) interpretations that are more general?
Bessie Margolin: He tries to --
Stanley Reed: He doesn't mention an interpretation for this particular act that we have here, this King Packing Company, does it? He uses some general interpretation.
Bessie Margolin: Well, he frequently will give specific opinions when they're requested.
Stanley Reed: Well, but before this suit was brought, did it -- was the suit brought by the Wage-Hour Department, wasn't it?
Bessie Margolin: That's right to --
Stanley Reed: (Inaudible)
Bessie Margolin: -- to enjoin violation.
Stanley Reed: To enjoin violation of the Act. And now, was there some specific finding by anyone before that action was brought?
Bessie Margolin: Well, I don't know what you mean by specific finding. There was an investigation and they were advised --
Stanley Reed: (Voice Overlap) the authority that the -- the Wage-Hour Administration that says, “We -- we think that sharpening knives before for meat-cutting is --
Bessie Margolin: Oh, the interpretative bulletin specifically states that administrative view that knife-sharpening time is not preliminary, postliminary but is compensable principal activity.
Stanley Reed: Well, now, does that have any new forms on the Court to pass on --
Bessie Margolin: I think undoubtedly, the Court have given it great weight and particularly --
Stanley Reed: Submitted so far as evidence in the case.
Bessie Margolin: Well, those are published in the federal register and can be referred to as any other legal authority, I assume. In addition, to the -- the rule of the -- that this Court has repeatedly apply that that carries great weight is the fact that those interpretations have -- have been brought to the attention of Congress or at the time of the 1949 Amendment and Congress did not changed that particular interpretation. And as this Court has held in two recent decisions, this -- the general section in the 1949 Amendments keeping in effect any interpretation are not inconsistent with the terms of the amendments that that is in effect a ratification of the interpretations then outstanding. Now, these interpretations were --
Stanley Reed: You heard the interpretative -- you heard that the interpretive bulletin has the same authority as the regulations?
Bessie Margolin: Well, I wouldn't go so far as to say that. I -- I think a regulation becomes almost the same as a law, but I think that those interpretations that were outstanding at the time of the 1949 Amendment and not -- and not amended by virtue of the Section 16 (c) of that Act take on almost the same effect as a regulation rule or the statute itself were.
Felix Frankfurter: Was there controversies before the amendment, Ms. Margolin? I -- I'm referring from -- from the fact that there was administrative bulletin for rendering --
Bessie Margolin: On the knife sharpening time had been the controversy? I don't believe we have specifically brought any action.
Felix Frankfurter: Was there any -- was there any chemical in the earlier cases? Well, if these --
Bessie Margolin: On the --
Felix Frankfurter: -- these conflicts derived from the Board -- that the Board will ask?
Bessie Margolin: These -- some of them -- most of them have come up, I think since before -- for lack of these law has been -- regardless, very well-settled prior to that time. If I may, I would like to reserve the remainder of my time.
Earl Warren: You may.
Willard S. Johnston: If I may speak to that question so --
Earl Warren: Mr. Johnston.
Willard S. Johnston: Thank you. While we're on this subject, I must disagree with Ms. Margolin that these controversies arose from the Portal-to-Portal Act, certainly and most specifically in so far as the knife-sharpening problem that we are concerned with in this case. This problem, this whole problem arose under the Wage and Hour Act, the Labor Standards Act before the Portal-to-Portal Amendment. And this tool sharpening problem was involved in the Mount Clemens Pottery case, which this Court decided and which was the last of the three cases under the Wage and Hour law that clearly and undeniably resulted in Portal Act. And in the Mt. Clemens case, it seems to us that they -- that this Court made a holding which makes it perfectly clear if we're going to concern ourselves with questions of statutory construction that there is no merit in the Government's position here, and that what the Government is doing is seeking to ask this Court or is asking this Court to nullify the Portal Act. The Mt. Clemens case, if Your Honors please, was concern with preliminary activities such as we are concerned with here. It was concern with both travelling, walking on the company's premises, and it was concerned with preliminary activities such as the knife-sharpening, tool sharpening. And the question before the Court in the Mt. Clemens case was whether all these preliminary activity compensable under the law or not. And the Court didn't hold that it was all compensable. You held only that part of it, namely, that that was necessary to the performance of the employees' main job was compensable. Well, it was that holding that resulted in the Portal Act, namely, the holding that only dispensable, I mean only indispensable, only necessary preliminary work is required to be compensated for under the old Wage and Hour law. It was that holding that Congress didn't like and that has caused Congress to enact this language, which has Mr. Justice Frankfurter has pointed out, is so clear in eliminating the compensability of any preliminary activities. The statute uses the word “any”.
Felix Frankfurter: Is the Mt. Clemens record as it came here -- as it came here, was it allowed or disallowed gathering from what you said? It slipped through my mind. I thought it was partly and I didn't know the proviso involved in this case. Now, was there an item for the knives which -- and it came here was allowed or disallowed?
Willard S. Johnston: Your Honors ruled that it was allowable on the theory that it was a necessary activity. That it was a necessary preliminary work, but you pointed out that any of that preliminary work that was unnecessary was not compensable even under the old law prior to the Portal Act. In view of that, the Government has no standing here to claim that all that the Portal Act did was to make not compensable, the unnecessary, superfluous travel time or other preliminary activities. You -- you pointed out particularly with reference to the matter of travel time. There was only the necessary travel time, the indispensable travel time that could be compensated for. Thus, you said --
Harold Burton: On the property of the employer.
Willard S. Johnston: On the property of the employer, yes, yes.
Felix Frankfurter: But the government --
Willard S. Johnston: But --
Felix Frankfurter: It doesn't follow, I suppose this (Inaudible) to say or could say, that -- that because of some necessary, something deemed necessary on Mt. Clemens were now no longer after the Portal-to-Portal Act dispensable, that that doesn't -- that doesn't establish. That isn't the equation which proved that those necessary things which are part of what he calls the (Inaudible) have also been cutoff by Portal-to-Portal.
Willard S. Johnston: Well, that's conceivable but when you look at the language of the statute as you have already pointed out, Congress didn't make any qualifications. In fact, not only did Congress not make any qualifications, but if Your Honors please, Congress specifically excluded the possibility of any qualifications by excluding liability for any of these activities, just going through the language of the statute which is so clear itself. We think there is no room for statutory constructions.
Felix Frankfurter: (Voice Overlap) questions down to the argument as I understand it that principle activity is almost a term of art and doesn't mean that which takes most of the day in doing but that which is of indispensable part, not every -- just walking down from -- from the entrance, way down below it, just entered by (Inaudible) six floors down below which is certain. Walking down isn't a necessary part of cutting meat or chopping it nicely. I don't know why this (Inaudible) --[Laughs]
Willard S. Johnston: It is. It's most necessary and most indispensable. It's just as indispensable as knife-sharpening that the employee gets to the place where he does his work.
Felix Frankfurter: What are you doing with -- what are you doing with Mr. Cooper's observation?
Willard S. Johnston: Well, Senator Cooper was contradicted immediately by Senator Barkley. Senator Barkley said, "This isn't my impression," he said and we've quoted the language in our brief here.
Hugo L. Black: Which one -- which one was for the Act?
Willard S. Johnston: Senator Cooper was for the Portal Act and Senator Barkley was one of those that opposed it and he said, "I don't like it because it's so broad." He and the other senators contradicted and disagreed with Senator Cooper. We've quoted the language which Senator Barkley used on page 20 of our brief and he was responding to Senator Cooper. He said, "All preliminary and postliminary work required by an employer in non-compensable and that --
Hugo L. Black: Which one was charged by the Committee with the special responsibility?
Willard S. Johnston: Well, Senator -- Senator Cooper was one of the members of the Committee, Senator Barkley was not. However, we do not --
Hugo L. Black: If knife -- if knife-sharpening is not as -- as is argued by the Government --
Willard S. Johnston: Is -- is what?
Hugo L. Black: Then, if knife-sharpening is not included that time, then Senator Barkley was mislead.
Willard S. Johnston: It's not in the statute.
Hugo L. Black: If Ms. Margolin is wrong about the position you take about the knife -- knife-sharpening --
Willard S. Johnston: Yes.
Hugo L. Black: -- Senator Barkley was mislead, wasn't he?
Willard S. Johnston: No.
Hugo L. Black: He wasn't? He asked (Voice Overlap) --
Willard S. Johnston: Senator Cooper was mislead.
Hugo L. Black: Senator Cooper? No.
Willard S. Johnston: Let me see if I follow you.[Laughs] If --
Hugo L. Black: Senator -- Senator Barley just wanted to know of the -- the time people spent on sharpening their knives like these are doing here would be compensable. Senator Cooper said they would.
Felix Frankfurter: Mr. Senator Barkley wasn't mislead, he disagreed.
Hugo L. Black: But he disagreed.
Felix Frankfurter: Yes, he wasn't mislead.
Hugo L. Black: If -- if it should be held now that Senator Barkley, that Senator Cooper was wrong, we would be holding that he -- he didn't understand that phase of the bill would he?
Felix Frankfurter: Senator Cooper?
Hugo L. Black: Yes.
Felix Frankfurter: Well, Senator Cooper wasn't dealing with our case.
Hugo L. Black: But he was dealing with knife-sharpening at the time.
Felix Frankfurter: He was dealing with a -- a different case than we have which I would like to go into tomorrow if I may.