John G. Roberts, Jr.: We'll hear argument next in Case 17-340, New Prime versus Oliveira. Mr. Boutrous.
Theodore J. Boutrous Jr.: Mr. Chief Justice, and may it please the Court: The First Circuit held that independent contractor agreements are contracts of employment and, therefore, they were exempt from the Federal Arbitration Act. This reading of Section 1's exemption is contrary to the plain meaning of the statute and its structure, purpose, history, and context. This Court, for many years going back to before when the Federal Arbitration Act was enacted, has said over and over again that if Congress uses words like "employment" or "employee" or "employer" in a statute without further helpful definition, it intends for the common law agency rules to govern that govern an employer and employee relationship. In the Section 1 exemption, Congress did not define or suggest it was coming up with a new, creative interpretation of the word "employment" or "employees," which was also used in that clause. The First Circuit's decision --
Sonia Sotomayor: How about the word "work" -- "worker" in the very clause? Shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce. Congress didn't use the word "employees" if it meant employees. It used a much broader term, "workers."
Theodore J. Boutrous Jr.: But it --
Sonia Sotomayor: Shouldn't that inform what it meant by "contract of employment"?
Theodore J. Boutrous Jr.: I think it does, Your Honor. A contract of employment of a worker. So, if the worker had a different type of contract, a contract that's an independent contractor agreement, it would fall squarely outside the statute.
Sonia Sotomayor: No. But it said it shall apply to any other class of workers, not employees. It used a much broader term.
Theodore J. Boutrous Jr.: It's -- Your Honor, it's a residual clause that follows contracts of employment of any other class of worker.
Sonia Sotomayor: But what we're trying to decide is what employment -- "contract of employment" means. And if it meant only employees, Congress naturally, I would assume, would have used the word "any other class of employees," but instead it chose a much broader word, "workers."
Theodore J. Boutrous Jr.: Well, Your Honor, I think, as we have -- have argued, the fact that the railway -- railroad employees is also -- is mentioned right before that, seamen, which are traditionally common law master-servant employees, demonstrates the --
Sonia Sotomayor: Well, except your adversary has pointed out that under the Seamen Act, it covered people who were not contracts of -- seamen are not just people who are employees; it also is the tugboat operator who's on the boat guiding it. It's other people who are not simply employees.
Theodore J. Boutrous Jr.: But Congress, just five years earlier in the Jones Act, defined seamen under the Jones Act as actions in the course of their employment, and as employees, this Court's Chandris decision also uses the common law definition of substantial connection.
Ruth Bader Ginsburg: What -- what do you make of the other side that says in the seamen category, the -- the ship's surgeon, the pilot qualify as seamen who are outside the Federal Arbitration Act, even though they're independent contractors, not common law employees?
Theodore J. Boutrous Jr.: Justice Ginsburg, I think the -- the physician example is a good one. The case that has been cited by the Respondent didn't involve a question of independent contractor or anything like that. It was -- the question was could the captain, basically, override the Hippocratic oath in terms of the physician exercising his independent judgment. And I don't think the Court has to determine whether every seaman is -- is an employee or not. The question is whether they had a contract of employment. And under this Court's decision in Circuit City, the Court emphasized that the exemption to the Federal Arbitration Act for contracts of employment should be given a narrow construction and a precise reading in order to defer to the pro-arbitration policies of the Federal Arbitration Act.
Ruth Bader Ginsburg: More narrow in the sense that it was limited to transportation workers?
Theodore J. Boutrous Jr.: In -- in that case, yes, Your Honor, that was -- that was the issue. But the overall thrust, if -- on page 120 to 121 of Circuit City, the Court in talking about seamen, railroad employees, air carrier -- the air carrier employees who were added to the Railway Labor Act in 1935, I believe, this Court said over and over again these were employment relationships, talking about the relationship between employees and employers. So this Court in Circuit City was clearly contemplating exactly what the statute says, that a contract of employment is a contract of employment. It's not an independent contractor agreement.
John G. Roberts, Jr.: Well, you keep in your brief -- and the other side raises this concern -- you -- you quickly shift the discussion of -- of contracts of employment to whether or not there's an employee/employer relationship. And simply because someone would be considered or not considered an employee doesn't necessarily answer the question of whether it's a contract of employment. People think naturally of employing an independent contractor. So I don't know why -- the question is not employee/employer. It's employment. And employment in -- in many of these contexts has a broader scope than the existence of an employee/employer relationship.
Theodore J. Boutrous Jr.: It's absolutely true, Your Honor, there are many different definitions of employment out there, but as I said, the Court's decision in National Mutual Insurance Company versus Darden, which we've cited, and in the Community -- Community for Creative Non-violence versus Reid case, which Darden cites, says that Congress -- we're going to assume that when Congress uses "employee" in Darden but in Reid the Court used "employment" and said when those terms are used by Congress, we -- we -- we assume Congress intended for the ordinary terms to be used. And here --
Sonia Sotomayor: Except the problem is that we don't really assume that because the other side has prevented us -- presented us with multiple cases, many of them in which we've used "contract of employment" to mean employees and independent contractors. It's all contextual, isn't it?
Theodore J. Boutrous Jr.: Not really, Your Honor. Most of the cases, the vast -- I'll give them this: They did a -- they did a good job of cataloguing haphazard, in passing, uses of "contract of employment" where it wasn't an issue. So, in describing a case about an attorney and a client, a court years ago called it a contract of employment.
Neil Gorsuch: Well, what do we do about the fact that, less haphazardly, your -- your colleague on the other side has documented that back in 1925, which is when the statute was enacted, and I think you'd agree that we have to interpret it as a reasonable reader would have at that time, didn't necessarily distinguish between independent contractors and employees with the degree of care that the law has subsequently come to use. And maybe even that your own client doesn't use. According to its website, it speaks of employing, I believe -- I can't remember the exact variation of the word -- but it treats these independent contractors as employing them. So what do we -- what do we do about the fact that that is at least an available reading still today and that there's a lot of historical evidence at the time of the statute in question that "contract of employment" may have swept more broadly?
Theodore J. Boutrous Jr.: A couple things, Justice Gorsuch. First, I don't agree with Respondent that -- that the independent contractor/contract of employment distinction was not well established. It was deeply embedded. This Court's decision in the Coppage case, which we cite in our reply brief, specifically, rhetorically acts as if everyone would know about this distinction. We cited the Conyngton treatise from 1920. It had an entire chapter called Contracts of Employment, and it made the explicit distinction -- and this Court has over the years cited Mr. Conyngton in its cases -- that contracts of employment were different than independent contractor agreements.
Sonia Sotomayor: But other treatises didn't?
Theodore J. Boutrous Jr.: We cited another treatise, Your Honor.
Sonia Sotomayor: But other -- you're not -- you're not denying other treatises -- other treatises didn't treat them differently?
Theodore J. Boutrous Jr.: Well, they didn't really -- to the extent they addressed the issue, the distinction was well established, Your Honor. Again, Respondent has cited a lot of authorities where it just wasn't a discussion or an issue. In the -- the need for a narrow construction of Section 1 in order to further the pro-arbitration policies of the Act, plus the presumption that Congress meant what it said when it said employment, that means even if we come to a draw or even if they come up with some other authorities, the background presumption is that Congress meant contract of employment. And I think it's also important that it's been nearly 100 years, and no court had ever decided that the words "contracts of employment," which are pretty clear, mean something completely different. The First Circuit and Mr. Oliveira contend that those words mean agreement to work. But if Congress, Justice Sotomayor, had wanted to say agreement to work, it could have said that. It said contracts of employment. So I think it's just very clear from the language of the statute that Congress intended traditional employment agreements to be the subject of the exemption. Clearly --
Sonia Sotomayor: Can you address the gateway question? Who decides this?
Theodore J. Boutrous Jr.: Your Honor, we believe that the Court's cases like Rent-A-Center and First Options and that talk about whether you have a valid delegation clause, in the first instance, the issue goes to the arbitrator because the parties agree to -- to arbitrate issues concerning what's arbitrable. And that's what this is. We -- we admit, we concede, that it's a bit different than some of the Court's cases, so the -- the Kindred Nurseries case that -- that ruled -- where the Court ruled that the Federal Arbitration Act did apply to a contract, one that there was a dispute about formation, and the party there had argued that because there was a dispute as to whether an -- an agreement was formed, the FAA hadn't been triggered. But --
Ruth Bader Ginsburg: But if Section 1 puts an entire category, even if you say it's a narrow category, outside the arbitration act entirely, it's exempt from the Federal Arbitration Act, then how can you use the arbitration act? The delegation clause would never come into play because agreements that fit the description, contracts of employment, they're outside the Federal Arbitration Act. That can't -- you can't use the Act to enforce any arbitration.
Theodore J. Boutrous Jr.: Yes, Your Honor, that -- that's Respondent's argument. And -- and I recognize it is a bit different than Kindred Nurseries, but it's -- it's very similar in the sense that the party there was arguing the Federal Arbitration Act isn't triggered because the agreement's invalid from the get-go. But the main point I would like to make on this issue about delegation is we trust courts too. Our main concern about what the district court did originally was to -- to rule that correct -- first ruled correctly that contracts of -- this was not a contract of employment, so the -- that issue needed to be looked at. And -- but then the court said there would be discovery and then a trial to determine whether the exemption applied. And we respectfully submit that the -- if a -- if a court -- whoever decides this, an arbitrator or a court, it should be done based on the four corners of the contract and based on what the -- whether it's a contract of employment or an independent contractor agreement.
Ruth Bader Ginsburg: I thought the -- the trial handler was supposed to determine whether this was an independent contractor and, therefore, outside the Section 1 exemption?
Theodore J. Boutrous Jr.: Exactly, Your Honor. And -- and our point is that's the really merits of the case. The -- Mr. Oliveira's argument is -- is that in -- in actual fact, he was -- he was an employee in the way the relationship in practice functioned. So that's the merits. So, if we're required to have a trial in federal district court about that issue, and -- and if New Prime prevails and it's determined that he's actually an independent contractor, the right to arbitrate that issue would have basically been defeated.
Neil Gorsuch: Mr. Boutrous, you -- you moved nicely to the merits, but just so we haven't ignored where we've moved so quickly in response to Justice Ginsburg's question, and I share the same concern, so perhaps you can help me. Before a court can do anything, issue an order under Section 4 compelling arbitration, that's what you want, is an order from the district court compelling arbitration, I would have thought it would have had to satisfy itself that it had the power to issue such an order. And Section 1 has this carve-out. And why isn't it more like a challenge to the delegation provision itself if you want to use Rent-A-Center as your authority, as I believe you do, rather than a challenge to the underlying contract? If we're going to make an analogy, I would have thought the analogy would have worked the other way. Help me.
Theodore J. Boutrous Jr.: I -- I -- I think, Your Honor, I have to say that is another analogy. And it's -- and it's one that -- it's another way the Court could go. But, here, the -- the presumption's kind of been flipped on us. We have an agreement that was in commerce. Everyone agrees with that. It's not a contract of employment. It's an independent contractor agreement. On the face of the Federal Arbitration Act, the district court had jurisdiction. The plaintiff -- Mr. Oliveira is asking for an exception. We agreed that if we had a dispute over an issue, any issue arising from the agreement, it would go to an arbitrator. And so it's not a question of jurisdiction. The federal district court, I think, had the power, inherent power, to stay or specifically -- order specific performance of an agreement, aside from the Federal Arbitration Act. But I do recognize that we're asking on that issue for the Court to take another step. And pivoting back to the merits, on that point, it's the Respondent who's asking for an upheaval. Basically, they argue that every word in the exemption is a surprise word. Contract means agreement. Employment means work or business of any kind. Seamen means everything. And in the Wisconsin Central case from last term, where the question was what does "money" mean, the Court said the government had made a decent case that "money" could be interpreted more broadly. But that wasn't the ordinary usage. And the Court said: Does money -- is it really ordinary to say money means everything? Here, the -- Mr. Oliveira is basically arguing that "contract of employment" means every type of work arranged --
John G. Roberts, Jr.: Now, but just so you -- saying that the arbitrator will decide arbitrability, there are different degrees of arbitrability. It's one thing to say, for example, if you have an agreement, we'll arbitrate all disputes on the plant floor. And then, you know, the company builds another extension of it and the question is whether it applies there. That's sort of within the four corners of the arbitration agreement. But if the issue is does the Act apply at all, that seems to be on a different order of magnitude. And it seems quite another thing to say that the arbitrator gets to decide whether a court can decide -- compel arbitration at all.
Theodore J. Boutrous Jr.: It is a different thing, Your Honor. And -- and we -- as I said, if the -- if the question is whether a district court would decide this, we'd be happy to have the federal district court interpret the contract or this Court could -- could do it. The contract is an independent contractor agreement on its face. So -- so I -- I do think it is a different inquiry. We -- and this Court has never held that interpreting that provision is an arbitrability issue that can be sent up --
Stephen G. Breyer: Well, the -- the reason that it's different is that when you decide whether parties have agreed to arbitrate arbitrability, is there an arbitration clause or not, you're looking to their intent in a contract document. When you decide whether there are procedural bars to this arbitration, you're looking to interpret a contract again, which will have the thing there. All right? Here, we are not doing that. We are interpreting a statute. And there is no reason -- well, all right. You see, I mean, it is, it seems to me, very different. As to the general question, if you read this just off the bat, you might think there is a whole category of arbitration called labor arbitration, and labor arbitration even in 1925 and before worked pretty well. And so you might have thought that Congress had in mind we're not talking here about labor arbitration. We're talking about business arbitration. And particularly labor arbitration where we don't have constitutional authority to act because that's what people thought in 1925. And so that is not just a dictionary word. That's saying what they're after is trying to exclude arguments between employees not in interstate commerce, et cetera, and their employers from this statute. The NLRB or its predecessors or early other methods are available for labor arbitration. If you take that as a kind of framework --
Theodore J. Boutrous Jr.: Yes.
Stephen G. Breyer: It's hard to do with Circuit City, I grant you. But still --
Theodore J. Boutrous Jr.: I was about to say that, Your Honor.
Stephen G. Breyer: Yeah, yeah, yeah, of course. But still Circuit City is -- it says what it says, but it does -- I don't know if we want to go further than -- than necessary.
Theodore J. Boutrous Jr.: Well, Your Honor, and I do think if we look at the -- the dissent in Circuit City, was making the point that this was about labor statutes. But the labor statutes apply to employees, and the unions are bargaining for employees, not for independent contractors. The labor strife and the labor peace issues were employees striking and the battles between the -- the railroads and -- and the -- the unions. But our --
Ruth Bader Ginsburg: What about the argument that the independent contractor status here was a sham, that it was a label rigged to make this person appear on the face, as you said, an independent contractor when, in fact, the -- the -- New Prime calls all the shots, the -- whether you label this driver an independent contractor or an employee, he is subject to New Prime's control as to a lot more than just the result of the work?
Theodore J. Boutrous Jr.: Yeah, Justice Ginsburg --
Ruth Bader Ginsburg: That argument, that this person, this is a -- a phony label and, in fact, this person is an employee, not an independent contractor?
Theodore J. Boutrous Jr.: We disagree, obviously, on the merits. That's the merits question that would be arbitrated. And if Mr. Oliveira is correct, he'd be entitled to further relief under the Fair Labor Standards Act, which is one of the provisions he's suing under. We -- we disagree with that. And -- and the other point, Justice Ginsburg, is that, here, it's undisputed that Mr. Oliveira had the choice, the free -- at his choice could -- to be either an independent contractor or an employee.
Ruth Bader Ginsburg: But he was told it's your -- he was -- he was told by New Prime's representative, you could be one or the other, but it's to your benefit if you elect the independent contractor format.
Theodore J. Boutrous Jr.: But -- yes, Your Honor, that's what he alleges. But the -- the -- there's evidence, some of the amicus briefs talk about this, that independent contractors make, net out, much more in pay. They have freedom and flexibility. And it may be that it didn't turn out well for Mr. Oliveira, and if he's right -- I want to make this clear. The arbitration process needs to be fair. And he would have -- Mr. Oliveira and New Prime would put their cases on to an arbitrator. And if he's right, he'll prevail. If New Prime's correct, it will prevail. And these arbitration proceedings can produce significant awards. Multiple people will bring the actions. I -- I've seen it happen with great frequency. There is effective relief. And so the theory that this is a sham, that goes to the -- the merits and to the function and how the relationship was in practice.
Sonia Sotomayor: On this --
John G. Roberts, Jr.: Counsel, did I understand -- I've been pondering your answer to the question I asked a while ago. Did I understand you'd be perfectly happy to have a court decide the arbitrability issue here?
Theodore J. Boutrous Jr.: Your Honor, we -- we think that the -- that there's a -- as we've argued, that this falls within Rent-A-Center, maybe one step beyond, but if the Court were to rule that independent contractor agreements are not contracts of employment, but we need a court, either this Court or the district court to decide that, as I said, we trust courts too to make that determination.
John G. Roberts, Jr.: Well, I must have missed it. I thought there was a lot of fighting over the question of whether a court or an arbitrator should decide the arbitrability in this case. I thought that was the first question presented.
Theodore J. Boutrous Jr.: That -- that is the first question presented. We stand on it, Your Honor. I'm not abandoning it. But the -- the main problem we have with what the district court ordered, the principal problem, was that it was going to be a trial on the main issue, in fact, the issue Justice Ginsburg mentioned, that is this really an independent contractor agreement; is it a contract of employment? The statute focuses on the contract, not on the activities. And so the first step we would respectfully submit, if the Court rejects our argument about arbitrability, would be to rule that this goes back to the district court or this Court rules on -- as a matter of law based on the contract, and then the case, if -- if we're correct that it is an independent contractor agreement, I think it's -- on the undisputed facts, it is, it has all the elements, then we go to arbitration and then we litigate the issue --
Sonia Sotomayor: Is there any other area of law where we take the party's label, "employee" versus "independent contractor," and give it binding effect? I -- I -- I thought, for virtually every other purpose in tax law, labor law -- I just don't know another area where we take the form of the contract as dispositive of a legal issue, of whether you're an employee or an independent contractor?
Theodore J. Boutrous Jr.: Your Honor, I -- I -- I can't think of one. But here we have the unique circumstance where the statute focuses on the contracts. And as I think Justice Breyer is making the point, this was back in 1925 where there was a real sensitivity about commerce power. And so, here, the statute focuses on the contracts. And I go back to Darden and Reid and -- and the 1915 decision that's cited in those cases, Robinson, which I think that tee up --
Sonia Sotomayor: But that only gets you as far as letting the arbitrator decide whether the arbitrability clause controls. I don't think that gets to the legal responsibility --
Theodore J. Boutrous Jr.: But -- but, Your Honor, in --
Sonia Sotomayor: -- to the merits question, whether he was an employee or an independent contractor entitled to more pay or not.
Theodore J. Boutrous Jr.: And -- and, Your Honor, I -- I hear what you're saying. We're not arguing that if you just slapped the label "independent contractor" on a contract, game over. The terms of the agreement give Mr. Oliveira the power to work for others, to -- to determine how to do the job. It -- it has all the features of an independent contractor.
Sonia Sotomayor: I don't want to argue the merits. I'm arguing meaning -- that you can argue.
Theodore J. Boutrous Jr.: Yes.
Sonia Sotomayor: You argued to the court --
Theodore J. Boutrous Jr.: Yes.
Sonia Sotomayor: -- and lost on that, on at least the arbitrability.
Theodore J. Boutrous Jr.: Yes. And there -- and -- and on that point, Your Honor, in terms of determining whether it -- it's arbitrable, my only point was that whether it's the arbitrator or the court, the inquiry should be, what is this agreement? Is it a contract of employment on its face, the four corners of the agreement? If -- if it -- if it is, then it's exempt from the Act. If it's an independent contractor agreement, it's subject to the Act. And then the arbitrator would do, Your Honor, what you were suggesting: Probe the arguments, was this a legitimate agreement, what was it, and is Mr. Oliveira entitled to relief? With that, Mr. Chief Justice, I'd like to reserve my time. Thank you.
John G. Roberts, Jr.: Thank you, counsel. Ms. Bennett.
Jennifer D. Bennett: Mr. Chief Justice, and may it please the Court: It's black-letter law that statutes are interpreted according to their ordinary, common meaning, not now but at the time they were passed. And there's overwhelming evidence that in 1925, when the Federal Arbitration Act was passed, the words "contract of employment" were a general category for agreements to perform work. They included the agreements of common law servants, as well as independent contractors. Whether you look at statutes, case law, newspaper articles, even actual contracts themselves, the result is the same: The vast majority of sources call independent contractors' agreements to perform work "contracts of employment." And perhaps most relevantly, Congress itself repeatedly used the phrase that way. Congress passed multiple statutes contemporaneous with the FAA that all used the phrase "contracts of employment" to refer to independent contractors' agreements to perform work. Prime has said nothing about these statutes at all. Instead, Prime dismisses the mountain of sources that use the phrase "contracts of employment" to refer to independent contractors' agreements to perform work as people unthinkingly using the term that way. But that's, in fact, precisely the point. Without even thinking about it, everyone, from this Court to Congress, to newspaper articles, to ordinary contract drafters themselves, everyone understood the category "contracts of employment" to include the agreements of independent contractors, as well as other workers. That --
Samuel A. Alito, Jr.: Does the concept of a -- a contract of employment involving a class of workers -- and Justice Sotomayor focused on the term "workers" -- a class of workers engaged in foreign or interstate commerce, apply to all independent contractors who are engaged to perform some type of work?
Jennifer D. Bennett: It would apply to all independent contractors who are engaged in foreign or interstate commerce. And this -- this Court has said that the class of workers engaged in foreign or interstate commerce is quite narrow, actually. It's people who are directly involved in transporting goods or so closely associated to it to be assumed to be essentially directly involved.
Samuel A. Alito, Jr.: So anybody who's involved? It doesn't -- there are no distinctions among the -- the types of independent contractors who might be covered?
Jennifer D. Bennett: No, Your Honor. As long as they're a worker, then -- then anybody is --
Samuel A. Alito, Jr.: For that -- but anybody who does work is a worker?
Jennifer D. Bennett: Correct. That's correct, Your Honor. And this makes sense if you look at the historical context and the statutory context when this exemption was enacted. So Circuit City says that the exemption was trying to achieve two goals. The first goal is Congress was trying to avoid conflicts with preexisting dispute resolution statutes. And the preexisting dispute resolution statutes in force at the time define their scope functionally in terms of the work that was performed, not in terms of the worker's employment status. And so, if the exemption depended on a worker's employment status, it would create exactly the kinds of conflicts that Congress was trying to avoid. So, if you look, in fact, at the Transportation Act, which was the statute that governed railroad workers at the time, and if you look, in fact, at every dispute resolution statute that preceded the Transportation Act, they all define the phrase "railroad employees" to mean a worker engaged in the work of the railroad; that is, they defined it based on the work that you did, not your technical employment status.
Elena Kagan: May I -- may I go back to Justice Alito's question --
Jennifer D. Bennett: Sure.
Elena Kagan: -- and just give you a hypothetical --
Jennifer D. Bennett: Sure.
Elena Kagan: -- and say whether your argument includes this too? So suppose that Amazon contracts with FedEx or UPS to ship all its products and they want to send their disputes to arbitration. Does that fall within the Act or does that fall within this exemption?
Jennifer D. Bennett: It would not fall within the exemption. It would be subject to the FAA. And the reason for that is because the FAA requires -- applies -- exempts, rather, a class of workers engaged in foreign or interstate commerce, not companies engaged in foreign or interstate commerce. And FedEx isn't -- wouldn't be considered a worker. They would be considered a company. And I want to return to what Circuit City said about the goals of this exemption.
Elena Kagan: So -- so --
Jennifer D. Bennett: Sorry.
Elena Kagan: -- just give me a little bit more on that.
Jennifer D. Bennett: Sure.
Elena Kagan: In -- in every case, we have to figure out whether a worker is involved or a company is involved?
Jennifer D. Bennett: That's correct. And in most cases, that won't be difficult. Here, for example, that's not a disputed issue. And I've seen very, very few cases where that is, in fact, a disputed issue. But it's true that if in the rare case where it is, the court would have to figure that out. And that's based on the text of the FAA. The FAA says we exempt these kinds of contracts. And so, if there are questions about whether a contracted issue is the kind of contract that's exempted, then a court has to figure it out to determine whether the FAA applies before applying it. And to return to the goals of the Act expressed in Circuit City, so we have not conflicting with preexisting statutes, and we know that those statutes applied functionally. They applied to people's role in work. And I'll note also on -- on that first goal, even if we interpret those other statutes narrowly to apply solely to common law employees, on Prime's interpretation, the FAA would still conflict with the -- with those other statutes, because even if those other statutes applied only to common law employees, what Prime is saying is the exemption doesn't apply to common law employees. It applies to whatever -- to people whose contracts say they are common law employees, even if they're not. And so you'd have a whole class of people, even on Prime's interpretation, that would be subject both to these alternative -- preexisting alternative dispute resolution statutes, as well as the FAA. So anybody whose contract was silent, anybody who was illegally misclassified. And so there would be a conflict even on Prime's own interpretation of these statutes. And, again, we know that these statutes, in fact, were applied functionally. The Historian's brief describes dozens of cases in which the Transportation Act was applied to independent contractors or people working for independent contractors. And -- and the second goal of the statute, as Circuit City explains, beyond these specific conflicts, is that Congress was concerned generally with transportation workers' role in the free flow of goods. The FAA was enacted in the wake of years of labor unrest in the transportation industry that had repeatedly shut down commerce. And I want to note that this labor unrest, Prime says that it was only common law employees of the railroads. That's, in fact, not true. The Shopmen's Strike, which happened just before the FAA was passed, was caused in large part by workers who were not common law servants of the railroads that they were striking against. And so, given these years of labor unrest and the havoc that Congress had seen that people who are not common law servants could wreak, it makes perfect sense that Congress would exempt workers based on their role in the transportation of goods, that is, their ability to shut down commerce, rather than their technical employment status that was listed in their contract. It would make no sense at all for Congress to treat workers who had the same ability to disrupt commerce differently simply because of what their contract said. And I want to note that if we take Prime's interpretation, that would also lead us to absurd results in at least two ways. First, on Prime's interpretation, if a worker's contract is silent, that is, if it doesn't say what your employment status is or not, then it would be impossible to determine whether to apply the contract at all. And, second, if a contract misclassified a worker, illegally misclassified a worker as an independent contractor, then the FAA, unlike any other federal statute, would depend on that illegal misclassification, rather than the actual worker's status. And so we have the text of the statute, the context of the statute, and the absurd results that would result, all leading us, pointing us in the same direction. And on -- quickly just on the first question, I want to note that, I think, as Your Honors understand, in general, we don't apply statutes that don't apply. And so, if a court is going to apply a statute, it has to figure out first whether it applies.
Ruth Bader Ginsburg: But what of the --
John G. Roberts, Jr.: Well, I understand -- Justice, please.
Ruth Bader Ginsburg: What of the Petitioner's argument that, forget about the FAA, that a court has inherent authority to stay a proceeding pending utilization of an alternate dispute resolution mechanism chosen by the parties?
Jennifer D. Bennett: Your Honor, as this Court has repeatedly explained, courts have a duty to exercise the jurisdiction that Congress has granted them. The exceptions to that duty are really under exceptional circumstances. And one of those exceptions could be an ongoing proceeding, but there is no ongoing proceeding here. Courts generally don't have the duty -- the authority to just stay a proceeding just because they want to or because there might be some proceeding that happens in the future. And I'll note that Prime did not ask the court to use its inherent authority. Prime solely asked the court to rely on the FAA. And so the court has to decide whether the FAA applies to know whether it can grant Prime's request.
John G. Roberts, Jr.: Well, I understand your friend on the other side not to care about that. Did I --
Jennifer D. Bennett: That -- that is how I understood the argument as well, that's correct. (Laughter.)
Jennifer D. Bennett: And I just want to -- yes?
Neil Gorsuch: Well, while we have you here, you -- you -- in response to Justice Alito and Justice Kagan, you raised a very interesting point about the difference between workers and companies. And similar to the kind of question we have here presented between employees and independent contractors, there are going to be fact issues in either circumstance where a district court's going to have to sort them out. Courts disagree over how summary those procedures should be. Let's say we're just in -- in a world of workers versus companies. How would you expect the district court to sort that out? I mean, the FAA is supposed to resolve these things quickly in a summary fashion. Section 4 says if there's a dispute over whether there is a contract to arbitrate, it's supposed to go to a summary trial, not five years of discovery and all the glories that entails that we're familiar -- all painfully familiar with these days. But how -- how would you advise us to write that portion of the opinion?
Jennifer D. Bennett: Your Honor, at first blush, you could look at the contract, and it would only require factual -- any sort of factual inquiry, if there was a dispute about it, you know, say the contract was a subterfuge or the contract doesn't say anything at all. And in the few cases where this has come up, I believe courts have resolved it largely on declarations. And very limited discovery would be needed to determine whether a person performed the work himself. The question would be did the parties contemplate that the individual who is suing performed the work himself -- him or herself, or did they contemplate that it would be a company? And so that inquiry would require very limited discovery, if any at all.
Neil Gorsuch: So is it safe to say that we have at least common ground on one thing, maybe a few things today, but at least on this, that the proceedings may not be limited to the form of the document before us but should be summary in nature?
Jennifer D. Bennett: Yes, I agree with that, Your Honor. That's correct.
Samuel A. Alito, Jr.: What do you mean by -- what do you mean by "a company"?
Jennifer D. Bennett: I mean anything that is not a real person. So, for example, a corporation would -- would be a company.
Samuel A. Alito, Jr.: A corporation would be a company?
Jennifer D. Bennett: Sure.
Samuel A. Alito, Jr.: What if it's a sole proprietorship?
Jennifer D. Bennett: Then the question would be what did the parties contemplate, that the person who owns the proprietorship would perform the work himself? And if that's true, then it would be an agreement to perform work of a transportation worker. If that's not true --
Samuel A. Alito, Jr.: So some independent -- I thought you said all independent contractors would fall within this, provided that they were engaged in foreign or interstate commerce in the sense relevant under the FAA. But now I think you're -- are you modifying that? So are you modifying that?
Jennifer D. Bennett: Yes, Your Honor, I'm sorry, I misunderstood the initial question. I was talking about people who would be considered workers. So independent contractors who are businesses would not fall within the exemption. And that's based on the text of the exemption. It has --
Samuel A. Alito, Jr.: So, if they're businesses, what does that mean? I mean, I've got you on corporations, but beyond that, are we getting into a difficult area?
Jennifer D. Bennett: I -- I think the -- the --
Samuel A. Alito, Jr.: If it's a sole proprietorship, if it's a partnership, but it's -- it's in business.
Jennifer D. Bennett: I think it's easiest to approach the question from the other direction, which is to say, was this -- did the parties contemplate that the person with whom they agreed would personally perform the work? And, if so, then it would be an agreement to perform work with a transportation worker. If the parties didn't contemplate that the person who agreed to do the work would personally do it, then it wouldn't fall within the exemption. And so we don't need to decide the exact definition of business; solely just is this an agreement for someone who is engaged in commerce to personally perform the work.
Elena Kagan: But to take one -- an opposite extreme from UPS or FedEx --
Jennifer D. Bennett: Sure.
Elena Kagan: -- you know, suppose it's like Joe Smith Truckers, and Joe Smith Truckers is Joe Smith and his brother, and -- and the contract was with Joe Smith workers, and he says "my brother will do the work."
Jennifer D. Bennett: So, if -- if the parties contemplated that the brother would do the work -- if the brother -- if the brother is the one suing, he's likely not bound by the arbitration agreement at all because he won't have been the one to sign it. The business will have been the one to sign it. If Joe Smith is suing and if -- then the question would be, did the parties contemplate that Joe Smith was agreeing to perform work as a transportation worker, or did the parties contemplate that Joe Smith was agreeing that this company, somebody at this company, would -- would perform work? And I think that would be the question. And this is a really rare -- as this case shows, where it's undisputed, it's a really rare situation in which it would come up. And part of the reason for that is if a company agrees to arbitration, then it's hard to say that any individual who wasn't contemplated in the contract would have agreed to arbitration at all.
Samuel A. Alito, Jr.: It sort of sounds like what you're saying is that if the person is a real independent contractor, then the person is outside of -- is -- is outside of the exemption, but if the -- if the entity is not a real independent contractor, which is your argument here regarding Mr. Oliveira, it's different.
Jennifer D. Bennett: I -- I'm saying if there are individual workers who are independent contractors, and we know there were such workers in 1925 as now, there are individuals who are independent contractors, even if they're bona fide independent contractors, they would be covered within the scope of the exemption. What I'm saying is if there's an agreement that's not of a specific person, a worker, to perform work, then they're outside the scope. And I want to quickly address one point that Prime said. Prime -- Prime says that none of the sources that we have cited are in the context of distinguishing between independent contractors and common law servants. And that's, in fact, not true. We cite dozens of sources that are in that context. In fact, we cited treatise that is about the law of independent contractors. The reason that's not the majority of sources we've cited is because we've also cited dozens of sources in which -- in a bunch of different contexts. And so the overwhelming weight of authority in all of these contexts is that a contract of employment was an agreement to perform work. And we were talking about Wisconsin Central before. What Wisconsin Central says is we look at what the ordinary, common meaning is. And it's very clear that what an ordinary, common person would have understood this exemption to mean in 1925 is that it applied to all agreements to perform work. We don't look at the rare, isolated instance. We look at the overwhelming weight of authority. And that means that the agreement is an agreement to perform work. If there are --
Samuel A. Alito, Jr.: Suppose you win on the issue of arbitrability, the court says "I'm going to decide whether the exemption applies," but then you lose on the issue of the interpretation of the exemption, the court says "it doesn't apply to an independent contractor, Mr. Oliveira's an independent contractor; therefore, I'm going to order arbitration." Would the arbitrator then be bound by the determination that he is an independent contractor for purposes of applying the Fair Labor Standards Act?
Jennifer D. Bennett: No, Your Honor, for two reasons. First, the -- it would just be an initial decision of who the right decisionmaker is. And if the court held that the right decisionmaker is the arbitrator, then the arbitrator could make that decision. But the second answer is that if a court were to decide the question of -- if the court were to hold that the exemption only applies to common law servants, then it would likely decide that question under the common law. And the Fair Labor Standards Act has a different standard. And so the question on the merits of whether a worker is an employee or an independent contractor is different than the question that would be if the court interpreted the exemption to be limited to common law servants. And on that point, I do want to note that Prime cites, you know, a handful of isolated instances, but, in fact, none of the sources that Prime cites, in fact, support its position. None of those sources say that we look just to the contract to see whether someone is a common law servant. At most, those sources use the phrase "contract of employment" more narrowly than what we would suggest the ordinary meaning is. But none of them say that if there's reality contrary to the contract, we would look at that. And, again, so the -- both the structure of the statute, the text of the statute, and the history, all of those factors mean that, in 1925, the ordinary person would have understood this exemption to apply to all agreements to perform work of transportation workers. If there are no further questions. Thank you.
John G. Roberts, Jr.: Thank you, counsel. Mr. Boutrous, you have five minutes left.
Theodore J. Boutrous Jr.: Thank you, Mr. Chief Justice. I want to start by saying we agree with Mr. Oliveira's position that a determination that this was an independent contractor agreement and, therefore, could go to arbitration would not bind the arbitrator. Then we'd go to the merits. Since counsel left off with the language and history of the statute, let me just go back to the statute. It says "contracts of employment." And this Court -- the Reid case, which is Community for Creative Non-Violence versus Reid, this Court -- this Court said, "Nothing in the text of the work for hire provisions" -- it was the Copyright Act -- "indicates that Congress used the words 'employee' and 'employment' to describe anything other than the conventional relationship of an employer and employee." The Court then went on to say that when Congress hasn't put anything in the statute to suggest that -- something else like any worker doing anything -- I'm paraphrasing -- then we look to traditional common law agency principles. On pages 10 and 11 of our brief, we responded to the -- the cases and authorities that -- that Mr. Oliveira cited with, among other things, this Court -- in the Coppage case, the Court declared "does not the ordinary contract of employment include an insistence by the employer that the employee shall agree, as a condition of the employment, that he will not be idle and will not work for whom he pleases but will serve his present employer, and him only, so long as the relationship between them shall continue."
Ruth Bader Ginsburg: Was it Coppage v. Kansas, shall not join a union? Was that the contract at issue?
Theodore J. Boutrous Jr.: I -- I -- I think so, Your Honor. And it was -- yes, Coppage v. Kansas. And -- and so the Court there was clearly making the very distinction we're talking about, that -- that it was well established that a contract of employment was what most people would think: I have a job. I have an employer. They can tell me what to do. They can tell me when I come to work. They can -- they can order me to perform tasks. That was --
Ruth Bader Ginsburg: But the kind of contract that was involved in Coppage v. Kansas was outlawed by the -- the National Labor Relations Act, wasn't it?
Theodore J. Boutrous Jr.: Your Honor, the -- I don't know, Your Honor, on that point, but --
Ruth Bader Ginsburg: Or Norris-LaGuardia before that?
Theodore J. Boutrous Jr.: But -- but the -- the -- the reason we cite it, Your Honor, is that it was well established what a contract of employment was. And -- and -- and the -- the other point I wanted to make was on the alternative dispute resolution provisions that Circuit City talked about. Again, the Court said, with respect to each of them, first of all, Congress with the exemption was not seeking to oust certain parties from arbitration. It was protecting arbitration because there were alternative mechanisms. So the exemption itself is pro-arbitration. And in Circuit City, on page 120, 121, with respect to each of the provisions it cited, the Court talked about employment relationships, so with respect to the Transportation Act that -- that counsel mentioned; it talked about the employees under the federal law, cited the Transportation Act; Railway Labor Act, employees; the Shipping Commissioner Act, employers and employees. So this Court and Congress were anticipating the traditional employment relationship based on the language of the statute. And with respect to the scope of the provision, in this case, the independent contractor agreement is between New Prime and the limited liability corporation that Mr. Oliveira formed. So it is an agreement between two businesses. And counsel's saying then we have to look and see how the parties contemplated the arrangement would function. But the agreement itself says that Mr. Oliveira could hire other employees, could work for other entities. It gave him the right to do that. So, from the face of the contract, it -- it gave him all of those -- those rights. And -- and, finally, just with respect to the definition of, you know, who's an employee and who's not, because I do think it's relevant. To divorce -- what -- what counsel -- what Mr. Oliveira did was take the word "contract" and find the broadest definition of contract; and then "employment," and find the broadest definition of that and put them together. We cite Black's Law Dictionary, which says, "A contract of employment," and this -- tracking it back to 1927 -- "was an agreement between an employer and an employee that states the terms and conditions of employment." But the broadest, this Court has said, has striking breath -- breadth. The broadest definition in federal law of employees, in the Fair Labor Standards Act, the very provision that Mr. Oliveira is invoking here, and independent contractors are not covered by that definition. So it would be anomalous in the extreme to rule against us on these issues. Thank you very much.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.


Warren E. Burger: We’ll hear arguments next in Tate against Short. Mr. Dorsen you may proceed whenever you are ready.
Norman Dorsen: Thank you. Mr. Chief Justice and may it please the Court. This case, arising in Texas is a sequel to the decisions last term in this Court in Williams v. Illinois and Morris v. Schoonfield. It involves the imprisonment of an indigent for an inability to pay certain fines imposed for traffic offenses. The facts are not in dispute. Petitioner, Mr. Tate, committed several traffic offenses in 1966. These offenses included driving without an operator’s license, driving a car with expired license plates and going through a red light. Neither alone nor taken together were these offenses punishable by a jail sentence. They were --
Potter Stewart: How many different times was he arrested for driving a car without an operator’s license?
Norman Dorsen: There were nine offenses.
Potter Stewart: Operator’s license?
Norman Dorsen: I think there were three of those.
Potter Stewart: Any indication why he didn’t go down and get a license?
Norman Dorsen: No, there’s nothing in the record on that.
Potter Stewart: How much do they cost?
Norman Dorsen: I don’t know that. It's probably $10.00 or so, $2.00.
Potter Stewart: $2.00.
Norman Dorsen: Neither alone, as I said, or taken together were these offenses punishable by a jail sentence. Petitioner was tried on two of the traffic offenses in 1966 in the Houston Corporation Court, a court whose jurisdiction is limited by statute to offenses punishable by fine alone. He was convicted on the two offenses and fined $75.00, but the judgment was not executed. This was explained by petitioner at the subsequent habeas corpus hearing on the ground that he had paid a lawyer to appeal the convictions. In fact, the lawyer failed to perfect the appeal. If the appeal had been perfected, petitioner would have been entitled to a trial de novo in the county court and relieved, at least temporarily, from the obligation to pay the fines. Instead, as I’ve said, the convictions became final, but there’s nothing in the record to indicate that petitioner ever knew that this had occurred. Petitioner’s attorney incidentally has since been disbarred for other reasons. Petitioner was not tried on the remaining traffic tickets until August 7, 1968. He appeared then in the same corporation court, the court with jurisdiction only to punish by fines, and he pleaded guilty to the other charges. The judge imposed fines which when added to those outstanding from 1966, totaled $425.00. Petitioner being indigent was unable to pay the fine. Pursuant to Texas statutes and the Houston Code, he was dispatched forthwith to the Houston Prison Farm to serve 85 days in jail, or one day for each $5.00 of the fine, the statutory rate in Texas. The relevant statutes are found on page 3 of our brief. Now, this was on August 7, 1968. On August 28, 1968, petitioner commenced a habeas corpus action and was released the same day on a bond posted by a friend. He had served 21 days and the unpaid fine was now $320.00 which would subject him to 64 additional days in jail.
Harry A. Blackmun: That same friend didn’t help him out with the fines?
Norman Dorsen: No he did not Mr. Justice Blackmun. The hearing on the habeas corpus petition was held in the County Criminal Court on August 30, excerpts from the record of which appear in the back of petitioner’s brief, not in the brown appendix. The certiorari petition contains the entire record of the habeas corpus petition -- of the habeas corpus hearing. The County Criminal Court denied the habeas corpus petition and the Texas Court of Criminal Appeals affirmed and the case then came here on certiorari. There’s one further important factual point I’d like to make at the outset. Although the state in its brief seems to dispute the fact that petitioner was indigent as of August 1968, when he was sent to jail for nonpayment of the fine, it is in fact perfectly clear from the record that the state had stipulated during the hearing in the habeas corpus petition that petitioner was “poverty stricken and that his whole family has been for all periods of time therein, and probably always will be.” This is in the appendix brief, page 7a.
Thurgood Marshall: Did he own a car?
Norman Dorsen: That does not appear in the record. The reason that that was not explored Mr. Justice Marshall is that the garnishment provisions in the law of Texas exempt levying on the car of a married man, so that car couldn’t have been used to pay the fine.
Thurgood Marshall: Well, he could’ve sold it?
Norman Dorsen: Well, he might have done that.
Thurgood Marshall: Well, what happens if a man has 64 charges of driving without a license, reckless driving and doing bodily harm with an automobile and he’s broke?
Norman Dorsen: Well, the first thing that has to happen is -- if he has no money, the court as this -- the lower court, the criminal court as this Court said in the Williams case last year has several alternatives. One is, if he has the possibility of earning some money to stretch out the fine over a period of time. If that won’t work, another alternative is to find a job for him or put him to work on at the prison farm or something of the sort, but not to confine him 24 hours a day.
Thurgood Marshall: Well you know the prison farm isn’t --
Norman Dorsen: No, no. What I have in mind there is what the A.B.A. in its minimum standards of sentencing provides, they call that partial confinement. The study by the A.B.A. concluded that in the case of the kind --
Thurgood Marshall: Well, I’m sure Texas doesn’t have one?
Norman Dorsen: No, they do not, they do not.
Warren E. Burger: Would that be a constitutionally any less offensive if he was only confined 12 hours a day instead of 24?
Norman Dorsen: Well, if he were confined only for the purpose of having him work out on a job, the fine we suggest would not be constitutionally offensive. In other words, if the man cannot pay, if it’s clear as Mr. Justice Marshall’s hypothetical put it that he wasn’t able to pay, our first constitutional requirement following the Williams opinion is that perhaps he might pay if the fine is stretched out over a period of time.
Warren E. Burger: Wouldn’t that be something at least resembling involuntary servitude if the sentence of the court was that he fend 12 hours a day at the local prison farm, at least eight hours of which should be spent working at $2.00 an hour?
Norman Dorsen: I don’t think it would be because of course there is a specific exception in the Thirteenth Amendment for persons convicted of a crime, but even more important that --
Warren E. Burger: But this --
Norman Dorsen: The state -- we are not claiming, I wish to be perfectly clear, we are not claiming that the state is powerless to get at the kind of person that Mr. Marshall’s -- that Mr. Justice Marshall’s question referred to.W e say that the state can take certain action. The first thing they should try to do is to use the installment method. If that doesn’t work, if there’s no likelihood that the installment method would work, the kind of arrangements for working off the fine over a period of time might be an alternative. Now, the A.B.A., the commission to study the federal penal code, all examined this extremely difficult problem because on the one hand as I’ve indicated, the state should not be powerless to proceed against an individual. On the other hand, the underlying principle of the Williams case as I understand it is that for the person who is without funds to put him into jail immediately, which is what happened here. There was no hearing, there was no exploration of the possibility of using these other techniques, we say that in a situation like this, the court should deal carefully, to use the phrase that Mr. Justice White used in his concurring opinion in the Morris case, with the man who is without funds, not exempt him, not exempt him because as I think the Chief Justice’s opinion pointed out, there could be a reverse discrimination in the case of a person who is indigent who won’t be able to be proceeded against in any way at all, we are not claiming that. We’re saying that if a man has, as this man had, fines totaling $425.00 or whatever the sum would be that the lower court must deal with that person individually, that there must be a hearing, this also is suggested by the A.B.A. and by the commission to reform the criminal law, and deal with him in terms of his particular situation. It’s possible in this case for example since he was getting a veteran’s check I think of a $104.00 a month that he would’ve been able to pay out the fine say $5.00 a week or something of this sort. The infirmity in the procedure here we’re suggesting is the immediate transference of an individual who is poor to jail without exploration of the various alternatives that were reviewed in the Williams case.
Thurgood Marshall: Will that if this get a -- this $425.00 out of figure?
Norman Dorsen: Pardon me?
Thurgood Marshall: $425.00 figure, I would assume maybe he got a $100.00 a month, he could’ve paid that two buck fine.
Norman Dorsen: Well, he had a wife and two children and a $104.00 a month --
Thurgood Marshall: Well, for example he could’ve bought a little less gasoline and paid the $2.00 fine.
Norman Dorsen: Well --
Thurgood Marshall: And I want to suggest the one thing, it might turn out to be it was gasoline.
Norman Dorsen: Well --
Thurgood Marshall: What I mean is $2.00-fine is different from a $100.00?
Norman Dorsen: I think that’s right. The problem we have on this record, Mr. Justice Marshall, which is -- which from another point of view is relevant to the question you’re raising is that the trial court did not do what we say is constitutionally required, and that is explore the very questions that you’re raising. What we’re saying is that the lower courts in these situations can not just take a person who hasn’t got the funds and put him in jail. We are not disputing the implications of your question, as I understand it, Mr. Justice. We’re saying that as the Williams case said, the choice is illusory for a man without funds. That does not mean he should be exempt. I want to emphasize that again and again because I think that’s a critical factor in cases of this kind, but that the lower court cannot just take him and put him in jail that more is required by the constitution to fulfill the mandates of the cases cited in Williams and the philosophy of the Williams case itself as I read it.
Potter Stewart: And that's or you say Mr. Dorsen could be met by Texas if it showed upon investigation, find that this man is to be sure not able to pay the whole $425.00 now, but that he can reasonably afford to pay $10.00 a month --
Norman Dorsen: That’s correct.
Potter Stewart: -- that he does get it the very least a $104.00 a month from the veterans --
Norman Dorsen: That’s correct sir.
Potter Stewart: -- whether or not he’s employed or --
Norman Dorsen: That is correct sir.
Potter Stewart: -- and that -- so then they are in to do that, and he doesn’t pay the $10.00 a month, can they then put him in jail?
Norman Dorsen: Well we would say in a case like that that the court should then hold the kind of informal hearing --
Potter Stewart: Well, it’s had the hearing and it’s found that he can afford to pay $10.00 a month out of a $104.00 a month, then he doesn’t pay it, then can they put him in jail?
Norman Dorsen: I would say that’s a case of willful refusal to pay and they could put him in jail. We are not claiming that in the case like that and I think that the Chief Justice’s could express the reserve --
Potter Stewart: And that even this Court -- even this Court which other Texas law has no power to do anything but fine people as you point out, nonetheless you concede that under the constitution, it could put him in jail if he didn’t pay the $10.00 a month?
Norman Dorsen: We would concede that the willful refusal and I think it’s pertinent in that connection because I’m glad that became clear that --
Harry A. Blackmun: Mr. Dorsen, let me interrupt you now and help me out in this respect. I’d like to change the facts a little bit. I suppose if the statute were only one sided, that for this offense, ten days in jail, would you be here then, rich or poor?
Norman Dorsen: If the fine were only $10.00?
Harry A. Blackmun: No, if there were no fine, the statute were ten days in jail for this offense, the statute ordinance?
Norman Dorsen: I assume we would not be.
Harry A. Blackmun: You would not be here. I guess my question then is, if you were to prevail here in this lawsuit, would not the resulting tendency in ordinances and statutes be to make all these offenses punishable only by imprisonment?
Norman Dorsen: There might be such a tendency. It’s hard to speculate that what would happen in each state. The fact of the matter is I think Mr. Justice Blackmun that many states now provide for the kind of arrangement that we are suggesting and some of those as I understand it to have -- have not changed the law regarding to sentencing. But I would like to emphasize one other point which I think is related to your question. The state makes much of the point and I think that perhaps one or two of the questions that have been asked indicate a concern about it that this is a scuff law. That this is a fellow who’s just oblivious to the normal restrictions that all of us would feel are binding in connection with operating a motor vehicle or a license, and therefore, perhaps he should go to jail. Now our position on that is two-fold. One that the state, as you suggest, can provide for jail sentences in cases of this kind, repeaters, people who are chronic violators. The State of Texas, the legislature of the State of Texas has not chosen to do that. The second point I would -- but we are emphasizing that that would be a perfectly valid mode of correctional philosophy. The second point we would emphasize on this problem of, to use the word the state uses, the scuff law, is that if people are going to go to jail for being scuff laws, rich people should go to jail as well as poor people. That if a fellow were a playboy or a fellow who had some money in one way or another and violated the traffic laws of the State of Texas, and I assume there have been some people who’ve done that in Texas as well as in New York and other states, we say that the law should be applied equally to the rich and the poor. Texas could decide to put them in jail. We are not at all disputing that power. In this connection --
Harry A. Blackmun: My only suggestion is that if you prevail here, you may provide an impetus for just that thing, and of course it ties in with the thinking of some people that one of the solutions to our traffic carnage is to impose differ --
Norman Dorsen: That may well be. I would not to dispute that as an original question. I might say in connection -- in terms of the state’s interest, the state at several points and very understandably from its viewpoint, suggest that this would be terrifically inconvenient for the state to do, terrifically inconvenient to do the kinds of things that the A.B.A. has suggested, that the commission to reform the federal law, Federal Criminal Code has suggested that Maryland now does, that Delaware does, that California does. Now, we say that that is -- that the inconvenience problem is to use the vernacular, a red herring, that all the state already has a probation apparatus. It already has people who are concerned with sentencing -- the statutes of the State of Texas provide incidentally for installment payments of fine above $200.00 in another connection. If you are fined above $200.00 and there’s a conditions for probation -- as a condition for probation, the court is in powered under the Texas Criminal Code to provide for installments that they don’t -- that the state doesn’t find that inconvenient. And the American Bar Association which went through for all of this, at great care, concluded that it is not too much to ask in the interest of equal protection to treat the people without funds of little bit more carefully. I might say, I pass the point by, I suppose it may have been implied in what I said that this case is really like Williams in the critical respect that the maximum sentence that can be provided for offenses of this kind is zero days, which brings it within the opinion of the Chief Justice and the concurring opinion of the due process theory by Mr. Justice Harlan. The amicus curiae, I might say, the National Legal Aid and Defender Association, which has come into this case, amicus curiae suggest that this is even a worst case than Williams, a more severe deprivation of constitutional rights because here, you’re not just adding to an existing jail term but you're substituting jail for a pecuniary penalty.
Potter Stewart: What was the maximum fine I wonder that he could’ve totaled, aggregate fine? He did get a $425.00, how much could’ve he been fined, a few thousand?
Norman Dorsen: It’s not clear on the record. The maximum that this Court could impose for any offense was $200.00.
Potter Stewart: Per offense?
Norman Dorsen: That’s right. So 1800 would’ve been the presumably the absolute jurisdictional limit, but they may have been the sure the limits for --. Now there’s another aspect to this case, it is not our principle point, but we would like to stress it, and that is that the idea of exchanging a man’s freedom for $5.00 a day strikes us as being itself implicitly irrational. When one thinks about how any person in the middle class or with comfortable means or just not an indigent, would feel about his freedom and to translate that precious thing, being the most precious thing we have for $5.00 seems to us over the line. And of course the American Bar Association,in rather strong language, in rather strong language made a similar point in which it said, I think it’s on page 12 of our brief that -- page 16, I’m sorry, page 16 of our brief, saying it even more strongly than we did that the exclusive use of a dollar a day ratio both presents the possibility of a brutally long sentence and provides as a measure, an arbitrary figure which makes no economic sense and which bears no relation to the factors which ought to govern the choice as to the length of the sentence.
Warren E. Burger: When was the statute passed in Texas? Is it some statute from that in the turn of the statute?
Norman Dorsen: It’s a rather old statute, I believe. Texas -- a hundred years ago, 120 years or I think in 1850 had a statute which provided for installments of some kind. It was repealed I think in -- well that the state will correct me on that, but it’s not a new statute in the State of Texas.
Warren E. Burger: Well, I suppose you’d agree in terms of the economic argument you’re making that at the turn of the century, $5.00 a day might not be irrational, might not have been irrational?
Norman Dorsen: Yes. Well that’s correct. I -- we’re not making a moral judgment on the legislature of Texas in making this claim. I think perhaps notions of fairness of change as well as the declining value of the dollar, and it seems to me that as one court, an Ohio court incidentally held, we cite the case in that long footnote on page 16 that $3.00 a day was irrational. We would say $5.00 a day is just unacceptable in terms of fundamental fairness and --
Thurgood Marshall: It would be the same if there was a thousand dollars to pay your argument would be the same?
Norman Dorsen: That’s correct. I’m just emphasizing this other aspect which is a separate point, and it is not as you point out a principle point.
Warren E. Burger: I take it if you from your argument that he could be put on a state prison farm and required to work eight hours a day out of $2.00 an hour rate or something, perhaps something geared to the minimum --
Norman Dorsen: Yes.
Warren E. Burger: -- wages under the federal act that he could also be put on a road gang, on a construction job, or any other work under compelled state supervision.
Norman Dorsen: I think he could be. I would not think that the state should use that as its first alternative. I think they should follow the recommendations made by the American Bar Association and the commission that --
Warren E. Burger: When you say the state should follow, you’re then talking in terms of advice to the state legislatures. How can this Court or any court give advice to the state legislatures?
Norman Dorsen: I did not mean to put it that way. What I’m suggesting is that we deal here with the deprivation of liberty. It seems to us fully consistent with this Court's hearing -- opinions in a variety of cases that the state should use the least restrictive means in enforcing its laws. Now this fellow, as we discussed earlier happened to be someone who was of a special kind perhaps, but that does not mean he’s an outlaw that he should be, you know, condemned totally. He should be given an opportunity to pay it off, and he could have perhaps and this incidentally is relevant to our second principle point and that is that the lower courts in these cases, we assert respectfully, have to hold some kind of hearing. Some kind of proceeding to find out what’s happening in these cases and they can not be just mass produced justice and a -- an automatic incarceration. If I have any time left, I’d like to just reserve a minute or two for rebuttal.
Warren E. Burger: Very well Mr. Dorsen.
Joseph G. Rollins: Mr. Chief Justice and may it please the Court. At the outset, we would like to discuss what this case does not concern. It does not concern any troubles that Preston A. Tate that may have had with his lawyers. We think that this is not in the case nor is it -- does it involve any arbitrary action on the power of the State of Texas in charging $2.00 for a driver’s license, that’s not in the case. The case actually boils down to the fact that this man, Preston A. Tate, ran a red light in the City of Houston and the policeman stopped him and as part of their routine procedure, they asked him to show his driver’s license. He didn’t have a driver’s license. He went in to corporation court, plead not guilty. The jury found him $50.00 -- fined him 50 on one offense, they could’ve gone at 200, they fined him 25 on the other. That very same day at 6 p.m. that evening he ran a stop sign and fortunately, a policeman saw him and stopped him and again he was arrested, and then subsequently he ran up a total of nine traffic offenses.
Potter Stewart: What was he -- did I understand you say that he -- Texas found him guilty of two offenses for not having a driver’s license on a single day?
Joseph G. Rollins: No sir, the day of his trial, the day that the jury found him guilty and fined him a $50.00-fine and a $25.00-fine that same evening -- the offense had occurred I think a week or so earlier, but then on then on the day of his --
Potter Stewart: Yes but -- the day of the trial, you mean he was coming homing from the trial?
Joseph G. Rollins: No -- I doubt it Your Honor, because it was 6:30 something p.m., and I don’t believe that he would be coming home from the trial, but nonetheless, it was the same day. He ran a stop sign and again was arrested, or given a ticket, he wasn’t arrested and that is something else that we would like to point out here. They say that he was immediately and forthwith taken to jail. He, over two years, expired between the time of these offenses and the time of his habeas corpus hearing. And although he might have had a wife and child at the time -- and two children at the time of the habeas corpus hearing, he had no children when he committed these offenses. In other words, there was enough time lag in there for him to father two children. So I don’t think the State of Texas has really been forthwith on this thing. In fact, I think perhaps we could be -- if we were to be criticized, we could be criticized in dragging our heels, and not bringing this thing to the head before now. Another thing in the petitioner’s brief, they question the jurisdiction of our corporation court and I think he answered his question when he stated that the corporation court could put a man in jail after he had failed to pay his installments. Well now, if we can put him in jail after failing to pay the installments, we could -- we’d have the jurisdiction beforehand. And besides, our Texas Supreme Court and Texas Code of Criminal Appeals says that the corporation courts and the JP courts have the right to enforce their orders by incarceration, and I don’t -- that is in our briefs, and I don’t think that it would serve any purpose to argue that further. The --
Thurgood Marshall: What effort was made during this year of two period to collect the fines?
Joseph G. Rollins: That Mr. Justice Marshall, I don’t know.
Thurgood Marshall: Well now at the hearing when he was sent away, what happened there other than that you don’t have the money so you go?
Joseph G. Rollins: Yes sir, that’s it.
Thurgood Marshall: That’s all?
Joseph G. Rollins: Yes.
Thurgood Marshall: Well, it would’ve been possible to find out whether he could’ve paid it in installment? Obviously, the judge could’ve asked one question “Can you pay this $10.00 a month?”
Joseph G. Rollins: There is no provision in our law for paying a misdemeanor of this type out in installments.
Thurgood Marshall: Well, is there anything in your law that prohibits it? I would assume --
Joseph G. Rollins: I’d --
Thurgood Marshall: -- at least I would assume that in this particular case, if the judge had said on the day he was fined $75.00, you have got two years to pay this $75.00. There would be no question about that. You could do that under the Taxes law, could you?
Joseph G. Rollins: Two years? I don’t believe, Mr. Justice Marshall that --
Thurgood Marshall: Well isn’t that what happened? It was two years before he got around to ask him for it?
Joseph G. Rollins: It was two years before they -- actually what happened here, they had some capiases out for him on some of these other subsequent offenses, and they finally arrested him. They finally ran him down. Now whether we didn’t run hard enough for not, I don’t know.
Thurgood Marshall: You didn’t deliberately delay that that was --
Joseph G. Rollins: No sir, no sir. In fact he was, as I say, and I was not on this case in the trial court level, and I’m not as acutely familiar with the facts as I should be, but my understanding is that there was about seven capiases working on him simultaneously. They were looked -- our police department was looking for him.
Hugo L. Black: Did he have all one of the defense for these cases?
Joseph G. Rollins: Seven of them were nolo contendere, and two that the jury -- he pled not guilty on two, the jury found him guilty.
Hugo L. Black: What was his defense?
Joseph G. Rollins: I don’t know sir. I don’t -- when a person gets caught red handed running a red light, I really don’t see a much defense.
Hugo L. Black: Well, I asked what his defense was, or has been?
Joseph G. Rollins: In the habeas corpus hearing, their only defense was that he was too poor to pay the fine.
Warren E. Burger: To pursue Justice Marshall’s question about installment payments, I assume Texas charges interest on its outstanding fine, wasn’t it?
Joseph G. Rollins: No sir, we do not.
Warren E. Burger: So at least he doesn’t have $3.00 a month interest running on him --
Joseph G. Rollins: No sir.
Warren E. Burger: -- on that $10.00?
Joseph G. Rollins: No sir. And to continue with Justice Marshall’s question, I don’t believe that a judge, or justice of the peace would have the authority under our law to set up his own little time payment plan. I don’t believe that when the law says that the fines shall be collected in certain manner, I don’t believe that each JP in all of our many counties could set up his own little empire so to speak on how he’s gong to collect these fines.
Thurgood Marshall: I assume you’re also make the point that it’s different from when he first was picked up and convicted and got $75.00 if the judge had said “Either this or you go to jail.” And this case where by the time they got around to him, he had nine other charges against him. I think those are two different cases, don’t you?
Joseph G. Rollins: As far as the equity is yes, but as far as the law is concerned, we think that the -- when the man could have -- if he had just obeyed the law right there, none of this trouble would’ve happened, but he chose to disobey the law. He chose to drive without a driver’s license for -- he admitted on the habeas corpus two-and-a-half years and as of last week, he hadn’t got a driver’s license yet. And we don’t think that of course as far as the question of law involved, the degree of a man’s perversity probably shouldn’t have anything to do with it, but nonetheless, it certainly should be something that we should not be blind to.
Thurgood Marshall: Mr. Rollins, my final point is the same judge does have right of probation, and do you not have a probation department in Houston?
Joseph G. Rollins: No sir, not on this --
Thurgood Marshall: I think that they could it -- no, but I’m -- you do have a probation department?
Joseph G. Rollins: The district attorney has a probation department, and they -- but on this type of fine, there is a city ordinance which allows the judge to delay collection of the fine 30 days --
Thurgood Marshall: I see.
Joseph G. Rollins: -- upon application of the defendant. He did not do this.
Speaker: How do you distinguish the Williams case in last term from your case?
Joseph G. Rollins: Your Honor, the Williams case by the specific language of the court, and I think at least ten times in Mr. Chief Justice Burger’s opinion, he emphasized that what the Court was condemning in Williams was an instance where they had a statute which provided for imprisonment, regardless. And in addition in this same statute, there was a provision for a fine and what this quote said, at least the way I read it and I believe that’s what the concurring opinion in the Schoonover case also said was their interpretation of it, was that this quote said that when you transmute a fine into equivalent jail time that that cannot extend beyond the maximum jail time provided in the statute. That was what was before the Court. They -- I believe you all said that you had a very limited question, and that’s what you decided on, but I was impressed by the number of times that Mr. Chief Justice Burger in his opinion kept referring to that circumscription of the case to a cases where it extended the total incarceration period beyond the period set forth in the statute. And in this case, this is a case where the only sanction for a violation of this statute was a fine only. We submit and we think we have shown it in our briefs that in cases like this that our other statutes which provide that upon failure to pay a fine, it maybe laid out in jail at $5.00 a day. We think these two statutes should be construed in para materia. In other words, to show that the legislature intended that the man should not get off scot-free, but that if he would pay the fine that’s fine. If he couldn’t, then he would have to lay it out in jail.
Warren E. Burger: Mr. Rollins, in the appendix, the opinion of the Court in Williams last year, there was an effort to summarize what various states did. And as to Texas of course, it didn’t purport to be complete, but it was recited that he maybe, the defendant found guilty and fined, maybe put to work or imprisoned for a sufficient length of time to discharge the amount. Is there a provision, a workout provision, under Justice of the peace fine, or --
Joseph G. Rollins: Your Honor, I can answer that for the City of Houston, that we have an ordinance which provides that if he will go -- voluntarily go to what we call our P. Farm, he can work that out at $7.50 per day. Tate refused to go to the P. Farm incidentally, but I don’t think that’s here --
Warren E. Burger: Well, wouldn’t you think that’s -- how does that appear? Does that appear in the record?
Speaker: What was that? Is that here?
Joseph G. Rollins: Is that -- was that in the habeas corpus? It’s not in the record.
Warren E. Burger: Well that’s a rather important aspect in view of what was said in the Williams case about alternatives, wouldn’t you think?
Joseph G. Rollins: Your Honor, the -- actually as far as principle is concerned, I don’t see that there’s any difference in incarcerating him or he can just lie around in jail and talk to the boys in the cell, or go out and work on the prison farm. It’s --
Warren E. Burger: Well maybe we might conceivably take a different view of the matter?
Joseph G. Rollins: Yes sir, that’s obvious sir. But you asked me the question called, I can’t see that the principle is that the man is being restrained of his liberty involuntarily.
Warren E. Burger: Professor Dorsen didn’t -- certainly, he didn’t argue that there was anything constitutionally impermissible, you recall, I’m not sure --
Joseph G. Rollins: But, I couldn’t understand --
Warren E. Burger: -- necessarily would agree with that, but since all of the treatment of this difficult problem has dealt in terms of alternatives, it’s conceivable that even at the rate of about a dollar an hour which Texas allows, plus presumably some food on a workout day, you might have a different case from the case you have without that evidence in the record.
Joseph G. Rollins: Your Honor, did you say a dollar an hour?
Warren E. Burger: You said a 8 -- $7.00 and a half a day.
Joseph G. Rollins: Oh! That is on our -- that’s the city ordinance.
Warren E. Burger: That’s roughly --
Joseph G. Rollins: Yes sir.
Warren E. Burger: -- a dollar an hour and I suppose they give the man something to eat when he’s -- during this working day?
Joseph G. Rollins: Yes sir, I can say that we feed real good. But --
Warren E. Burger: Only -- that might be quite a different case from the one you have here?
Joseph G. Rollins: Your Honor, I cannot see the difference. The man -- well, what would be the difference then? And my answer to that question by asking a question, what if we had a chain gang and lease the amount to the private road contractor and say now “If you go out here and work on this chain gang out in the hot sun, well, we’ll let you off a lot sooner.” I can’t see the difference in principle and the idea is that man is being restrained from getting out in society, that’s the punishment. And we believe that in a case like we have here where the legislature has stated that sanction shall be a fine, and then another statute which we think ought to be construed in para materia that if he does not pay the fine, then he has to go to jail. We think that that is entirely different and we would submit, there’s two early cases out of California which we did not include in our brief, but I would like to submit to the Court, it’s In re. Wadley in 23 Pacific 190 and In re. Rosenheim, 23 Pacific 372.
Warren E. Burger: Will you furnish us with the memorandum of those citations --
Joseph G. Rollins: Yes sir, I certainly will.
Warren E. Burger: -- and your friend?
Joseph G. Rollins: And Your Honor, I would like to point in the Wadley case, in a concurring opinion, Mr. Justice McFarlane mentioned that there -- classified the three types of sanctions for misdemeanor fines: imprisonment only, fine only, imprisonment plus fine. In In re. Rosenheim, there was a situation very similar to the situation that was before you all in Williams. And the court there, in the California court said that the language of the statute had an ambiguity because if the legislature had really wanted or had clearly wanted the fine to be transmuted to jail time and added on to the imprisonment time, they could have clearly so said, but that they didn’t, and that the misdemeanor had a constitutional right for California to pursue its policy of strict construction of the statute against the state and for the prisoner. In which case and they further stated that if the loose construction that the state wanted in that case were followed, then it was possible for a judge to do by indirection what he could not do by directly and I believe you all used that same phrase in Williams.
Harry A. Blackmun: Mr. Rollins.
Joseph G. Rollins: Yes sir.
Harry A. Blackmun: How long have you had your P. Farm ordinance?
Joseph G. Rollins: Long before the times germane year.
Harry A. Blackmun: Is it judicially noticeable?
Joseph G. Rollins: Your Honor in Texas, city ordinances are not. Our Supreme Court or our District Courts cannot take or do not take judicial knowledge of city ordinances. They do have city charters. So in strictly legal point of view, I would presume that a court could not take judicial knowledge of a city ordinance which sets up the --
Potter Stewart: Well, what the Texas law might be is to judicial notice doesn’t necessarily govern what the law might --
Joseph G. Rollins: Well --
Potter Stewart: -- be here as to judicial notice?
Harry A. Blackmun: In any event, why don’t you supply us with a citation of those ordinances or copies of them -- of it when you give the other citations --
Joseph G. Rollins: Yes.
Harry A. Blackmun: -- as the Chief Justice has suggested?
Joseph G. Rollins: Yes sir. It is in our city code and if the Supreme Court can take judicial knowledge of our City of Houston Code, well the problem is solved. And --
Warren E. Burger: Even if we can judicially notice those factors, we can’t judicially notice that the record in the habeas corpus proceeding shows that he refused to take this alternative. In fact, the record is blank on this.
Joseph G. Rollins: No sir, if it’s not in the record, I don’t think he can.
Warren E. Burger: Is there any -- was that before the Texas Appellate Court?
Joseph G. Rollins: Your Honor, I don’t know. I don’t think it was.
Warren E. Burger: Well, I have no idea whether a motion to supplement the record would be granted or not, but you’re certainly are free to make such a motion?
Joseph G. Rollins: Yes sir, I will certainly do so. And Your Honor, in what little time I have remaining, I would like to protest very vigorously about this idea of making the State of Texas or City of Houston or any other state kind of adopt, I guess it’s going to be something like the American Automobile Association has for their subscribers. They go out and pay the fines for you and its just all the part of the service. We don’t think that the Fourteenth Amendment by the wildest stretch of the imagination could require a state to set up a credit card classification of petty crimes and misdemeanors that --
Warren E. Burger: Well, are you referring now to the installment?
Joseph G. Rollins: Yes sir. That’s -- in other words, that’s what really what you’re asking is that or what he’s asking is that the sheriffs and chiefs of police just set up credits with people like Preston Tate and let him pay it out at so much a month or at then how it’s going to take the wisdom of Solomon and the sophistication of a computer that hasn’t ever been invented to correlate the man’s family size, his personal sensitivity, his -- the value of his car which he has committed the crimes with and all of that into a jumble and come out and say “Alright now, for you, it’s going to be $4.75 a week.” And then does he propose that in addition to having Solomon setting judgment on this that then we have another hearing on -- say that I have a $2.00 parking meter violation in the City of Houston and I go down there say “I’m too poor” then are we going to have a separate hearing on my guilt vel non. And then another hearing on whether I was telling the truth when I said I was too poor? And if I was just about half right on that too poor, well then is the judge going to have to figure out how we’re going to space those payments out? And another thing, if we have these installment payments, the people are going to start getting behind that’s just human nature then we’re going to have all sorts of Civil Rights cases coming up about our -- the way our deputy clerks go out and try to collect the fines that they used harsh language. And we’re going to -- we think that this is just leading to a Serbonian bog that we never will see our way clear off. And I think that before we stretch the Fourteenth Amendment to mean something that clearly was not written in it, I would like to leave in parting with the idea that the poor people in Houston in Texas outnumber the rich. They’ve got the ballot and the suffrage, and if they think the way we have collected their fines is wrong, they can elect city councilmen and state legislators to change the law. That the poor people of Texas have not done so would be indicative that this law and the way we carry it out is not oppressive and is not unworkable. But especially since the Fourteenth Amendment did not have the -- and I would like also to point out that the same Congress that wrote the Fourteenth Amendment was also the same Congress that passed on our constitution, and that we had to submit that constitution and ratify the Fourteenth Amendment before we could get back in the Union. That same Congress that wrote the Fourteenth Amendment thought our state constitution was all right. And we submit that this is strictly a matter of local concern and that it would be beyond the wildest stretch of imagination to require the State of Texas to -- and the City of Houston to set up this installment payment, But Your Honors if you do, please tell us exactly how to work it because the District Courts are going to be working overtime each one with the mutually conflicting subjective idea of what a proper installment should be and the proper collection procedure should be. And I can see of all three-man courts being convened all over Texas and all over the nation for matter, trying to determine whether the installment payment met the hood cost of living index or whether we should go on the guaranteed minimum income as an index for fiscal or in penal responsibility. And then Your Honor, I would like to add one thing. What about the people that just won’t pay? We ought to have some right to do that and we submit that it is our local -- that this is within the province of our people and our legislators. Thank you.
Hugo L. Black: Do you have any law in Texas to provide for the forfeiture of automobiles that used by people constantly?
Joseph G. Rollins: No sir. The -- a married man -- a married man’s automobile is not subject to execution. We had a populist inspired legislature in the early 1880’s that just took care of what the constitution didn’t take care of and if a man, if a married man is prudent enough in Texas not to have a bank account, he can go free.
Warren E. Burger: Mr. Dorsen.
Norman Dorsen: Thank you Mr. Chief Justice. I think that first of all that some of the catalogs of alleged horrors that my friend from Texas has referred to are really unrealistic, and I would just refer the Court rather than go in to the details to the case cited in our reply brief, Arthur v. Schoonfield which is the Maryland case that was back on remand from the Morris v. Schoonfield case, in which the three-judge court, there are only two judges sitting, the three-judge federal court reviewed in detail the new Maryland statute and showed, I think, very clearly in that statute and in the way the court discusses it how this method of collection can work consistently with Williams and Illinois and without undue burden on the state. I’m advised by my co-counsel from Texas that the P. Farm that was referred to that is not discussed at all in the record, is not really what -- I had first thought my friend from Texas was referring about. As I understand it from Texas council that everyone goes to the P. Farm, the so called P. Farm, but the people who work there, who agree to work get $7.00 a day for working. Now, that’s not the same thing as I was suggesting before, because what we were suggesting before was, absent the willfulness problem which I certainly want to reemphasize that the state is not powerless under the constitution to incarcerate somebody who willfully refuses to pay the fine. But absent that --
Potter Stewart: The P. Farm, is that capital P period for abbreviation for prison, or is it pea where they grow peas?
Norman Dorsen: I think it’s the first, the former. That we stand on the alternatives as discussed in the Williams case. I want to be very clear about that, that the installment process is one process and the work process is another. But 24-hour a day confinement is not necessary in the absence of willfulness to deal with this problem. And as I said a moment ago, the Maryland case and the Maryland statute I think make this abundantly clear. Another case recently decided by the Supreme Court of California almost unanimously which is in the appendix to our reply brief, the Anzano case reaches the same conclusion. I just want to clear up finally in half a minute a timing problem that may not been completely clear and this is my final point. And that is that after Mr. Tate was convicted and fined $75.00 in 1966, as far as this record shows and there was no attempt to impeach Tate’s testimony at the habeas corpus hearing on this point, as far as the record shows, he had no way of knowing until 1968 that that money was due. His lawyer had been disbarred and his lawyer apparently had failed and this case also to perfect the appeal. We think in conclusion Your Honors that --
Hugo L. Black: What -- Can I ask you what Mr. Tate’s occupation is?
Norman Dorsen: I’m not sure what his occupation was. He had some odd jobs, but I’m not sure what his occupation was.
Hugo L. Black: What kind of car was this? Could you show there.
Speaker: Chrysler.
Norman Dorsen: What?
Speaker: Chrysler.
Norman Dorsen: Chrysler, I don’t know the year? Do you? No? We --
Hugo L. Black: Doesn't show the model?
Norman Dorsen: Doesn't show the model? Well I’m just going to say in conclusion that we regard this case in the essential principles as indistinguishable from the Williams case and we therefore respectfully request the Court to reverse the judgment below. Thank you.
Warren E. Burger: Thank you Professor Dorsen. Thank you Mr. Rollins. The case is submitted.