William H. Rehnquist: We'll hear argument now in Number 88-1872, Cynthia Rutan v. Republican Party of Illinois, and a companion case. Ms. Leahy.
Mary Lee Leahy: Mr. Chief Justice, and may it please the Court: The complaint in this case alleges that the Governor's Office of Personnel controls the filling of all employment positions in departments and agencies under the jurisdiction of the Governor... that is, promotions, transfers, recalls from layoff and actual hire. Political affiliation is the decisive factor in filling these positions. In making its decision, the Governor's office uses the county Republican parties. The applicant... and by applicant I am including not just someone applying for hire, but applicant for promotion, transfer, recall from layoff... the applicant voting record in the primary is reviewed, as are contributions to the party and actual support of the party.
Sandra Day O'Connor: Mrs. Leahy, Illinois has a civil service system?
Mary Lee Leahy: That is correct, Your Honor.
Sandra Day O'Connor: And it was... there was an executive order--
Mary Lee Leahy: That is correct, Your Honor. In 19--
Sandra Day O'Connor: --that imposed a hiring freeze back in 1980?
Mary Lee Leahy: --That is correct, Your Honor.
Sandra Day O'Connor: And is that freeze still in effect?
Mary Lee Leahy: Yes, Your Honor.
Sandra Day O'Connor: And did the freeze in effect impose a new system of determining promotions and transfers and hires?
Mary Lee Leahy: Your Honor, I believe that this... yes, a new system imposed on the civil service system.
Sandra Day O'Connor: Because the freeze, the text of the freeze just said we won't have any more hiring.
Mary Lee Leahy: Unless I approve it, or someone that I delegate that authority to approves it. That was the gist of the Governor's executive order. And that is exactly what has happened. Their power to approve the filling of any of these positions has been delegated to the Governor's Office of Personnel, and they decide the filling of these positions.
Sandra Day O'Connor: And had the civil service system been in effect, there would not... you wouldn't be here. It would operate to disregard these considerations that you say are used now?
Mary Lee Leahy: Your Honor, we believe, and we quoted in our brief, certain appellate court rulings in Illinois that talked about the purpose of the civil service system. We believe that had that been operating as we believe it ought to, no, we would not be here, because these constitutional issues would not have been raised.
Sandra Day O'Connor: Do you know how many states do not have a civil service system now for nonpolicy-making employees?
Mary Lee Leahy: No, Your Honor, I do not know the precise number. The overwhelming majority do, Your Honor. We have looked at certain states.
Anthony M. Kennedy: Just to be clear, the civil service system just had the Governor's order superimposed upon it. It was not suspended?
Mary Lee Leahy: That is correct, Your Honor.
Anthony M. Kennedy: So that for the plaintiffs here, the civil service system was still operating in that it had examinations and it had a list of qualified people?
Mary Lee Leahy: That is correct, Your Honor, but the decision now is made by the Governor's Office of Personnel. And as we point out, unless the form, which is found at page 7 of our brief, unless that sponsorship of the individual person makes its way to the Governor's Office of Personnel, they do not even get in that pool to be considered. As we have alleged, both Ms. Rutan and Mr. Taylor should have received the promotion had the civil service system been working, because they were more qualified than the people who did receive those promotions. But without that sponsorship they do not get in the pool to be considered.
Speaker: Well, how about new employees?
Mary Lee Leahy: That is the same thing, Your Honor. Representative Winchester wrote to Petitioner Moore, who was trying to get a job in the Department of Corrections, and he said you have to get the endorsement of the county party before your name can be referred to the Governor's Office.
William H. Rehnquist: Are there any new hires or potential new hires who are parties to this action, people who are not already in state employment?
Mary Lee Leahy: Yes, Your Honor, Petitioner Moore.
William H. Rehnquist: He had never been employed by the state before?
Mary Lee Leahy: That is correct, Your Honor. He was seeking positions within the Department of Corrections.
William H. Rehnquist: And your contention is that we should expand our rulings in Branti and Elrod, to extend them to the hiring process?
Mary Lee Leahy: Your Honor, I'm not sure I would use the word extend, but I am asking the Court to apply those same principles of law, yes, Your Honor.
William H. Rehnquist: To the hiring.
Mary Lee Leahy: Your Honor, I believe that this Court has not made any distinction in applicants' First Amendment rights in other contexts. For example, Torcaso v. Watkins.
William H. Rehnquist: But in Branti and Elrod, the opinions point out in both cases that those people were already within the government employment system, didn't they?
Mary Lee Leahy: Yes, Your Honor, that is correct. But I think the only thing that the Court could decide were the facts that were before the Court at that time, and those were discharges. Your Honor, that is precisely the question that is before this Court, as to whether those factors that were constitutionally impermissible in Branti and Elrod are constitutionally impermissible in the benefits of employment we are talking about here. The Seventh Circuit held that those claiming recall from layoff, that they were not recalled from layoff when they should have been due to their political affiliation, should be remanded under Elrod and Branti. The court then held that as to Petitioners Rutan and Taylor, their denial of promotion and denial of transfer should be remanded to see if it reached the level of constructive discharge. And then the court outright held there was no cause of action whatsoever for the man seeking the job. We have approached this case in the traditional First Amendment analysis, and the respondents have failed to do that. Before going into that analysis, I would like to point out a few things that I think are important. The first is that there is no dispute that a person has the right not to affiliate with a particular party and has the right not to support a particular candidate or to support particular beliefs under the First Amendment, that that is protected activity. There also has been no suggestion at any point along the way that the jobs in question in this case fall under Branti, that is, the confidential policy making exception which was first talked about in Elrod and then further delineated in Branti. The Seventh Circuit Court of Appeals admitted that what had happened to the petitioners and cross-respondents was coercive. The respondents have used the words intrusive. And yet, throughout this litigation from the very beginning the Respondents have offered no compelling reason as to why such coercion, or such intrusion, should be allowed to exist. If we go back to the traditional First Amendment analysis, we start with the conduct in question. The conduct in question in this case is the right not to affiliate or not to associate or not to support particular political ideas. And that is protected by the First Amendment. The very coercion that this Court found existed in Elrod exists in this case. The purpose of this system is to force the person to affiliate with the party by voting in the primary, or to contribute money or to do volunteer work if they wish to get the promotion or the transfer or the job itself. The sponsorship that was found to be offensive in Branti is present in this case. The form used in Sangamon County requires the recommendation or endorsement of the precinct committeemen. These actions are substantial. Jobs are important to people Promotions are important to people. Being able to get a job in your chosen field is important.
Antonin Scalia: Mrs. Leahy, some, in fact quite a few political scientists, think that political parties are important, too, for the democratic process, and think that the ability of people to get jobs, the spoils system if you want to put it that way, is important to maintaining the viability of at least the kind of political party system we have had, a two-party system instead of multiple splinter parties. Why isn't that a sufficient state interest, perhaps not to overcome firing somebody who is already in a job and putting that person on the street, but a sufficient... sufficient interest to say we will hire the people who supported us for office?
Mary Lee Leahy: Your Honor, I am beginning with your premise that it is important to have a stable two-party system. I believe that this system is designed not to support the two-party system, but to preserve and protect the one party. If... if there were a state interest in rewarding those who were politically active, then these jobs ought to be open equally to all of those who are politically active.
Antonin Scalia: But they don't want to reward all those who are politically active. They want to reward those people who have worked for that party. I mean, it's not new. That has been done right in this country for many, many years.
Mary Lee Leahy: To a far less extent, Your Honor, but that is not--
Antonin Scalia: Oh, I think Andrew Jackson maybe did it to a far greater extent. I... I'm not sure about that.
Mary Lee Leahy: --Your Honor, that is why I said I accepted the premise that it is the two-party system. This system is not designed to promote that. It is designed to preserve and increase the strength of the incumbent party.
William H. Rehnquist: Well, but the two-party system suggests the outs will get their turn and they will do the same thing to the... for their supporters, that the ins did this time. I mean, there is a cycle involved.
Mary Lee Leahy: Well, Your Honor, I am not sure that there is a cycle involved, or how short that cycle has to be. I do not think that the First Amendment gives the majority the right to trample on the rights of the minority just because they happen to be in power for a particular period of time.
Anthony M. Kennedy: Well, suppose we were to disagree with you on that point. Suppose that we were to conclude that this does support the two-party system. Would you then have no case?
Mary Lee Leahy: No, Your Honor, if you find that there is a compelling state interest, and that it is served by... that it is this preservation or promotion of the two-party system, then you have to move to the third prong of the First Amendment analysis, which is--
Anthony M. Kennedy: But you would concede that that is a compelling interest protecting the two-party system?
Mary Lee Leahy: --Yes, Your Honor, I think protecting the stable two-party system is. I would point out--
Anthony M. Kennedy: And so then on the first prong of the analysis it is just a question of whether or not we agree with your characterization that it helps out one party only. Because if we... if we disagree with that and say it helps both parties, or helps preserve the two-party system, then there is a compelling state interest. Correct?
Mary Lee Leahy: --No, Your Honor. I think I misunderstood your question. I think then you would have to look at whether or not in those states which have civil service protection and do not take political factors into consideration in hiring, you would have to look there to see if there has been any effect on the two-party system. I don't believe that the Federal system, or those states that have a true civil service system in hiring, that the two-party system has been damaged in any way. I would submit that this system... the flip side of the coin can be that this system so turns people off from participation in political activity that it damages that system. Take a person who comes out of college with a degree in sociology and wants to be a case worker in the Department of Children and Family Services, and then finds out that this is the system by which he will get that job. I think that could damage political participation as much or more than any type of promotion of the system that has gotten by hiring those who are politically favored.
Sandra Day O'Connor: Mrs. Leahy, would you tell me whether all the Plaintiffs who were before the district court are still on the case and before us here?
Mary Lee Leahy: Yes they are, Your Honor.
Sandra Day O'Connor: Every category--
Mary Lee Leahy: That is correct, Your Honor.
Sandra Day O'Connor: --is represented before us now.
Mary Lee Leahy: That is right, Your Honor.
Sandra Day O'Connor: Promotion, rehire,--
Mary Lee Leahy: Recall from layoff, Your Honor.
Sandra Day O'Connor: --Recall from layoff.
Mary Lee Leahy: Transfer.
Sandra Day O'Connor: Transfer, and new hire.
Mary Lee Leahy: That is correct, Your Honor. We did not seek cert. on the recall from layoff, Mr. O'Brien and Mr. Standefer. But--
Sandra Day O'Connor: Well, then they are not before us.
Mary Lee Leahy: --The cross-petition was granted in regard to them, Your Honor.
Speaker: Okay.
Mary Lee Leahy: I would like to go back to the one point about, about the hiring and the significance of that. I do not believe that this Court has ever made any distinction between the applicant and those who are incumbent. The Torcaso case, Keyishian, Perry, can certainly be viewed as an applicant because this Court held even if he had no right, no expectation of continuing employment, that if he were not given a year's teaching contract because of exercise of his First Amendment rights, he had stated a cause of action. This Court recently addressed the applicant for unemployment compensation benefits in Frazee and in Hobbie, and again found no distinction between... no distinction in regard to First Amendment rights. We believe that--
Antonin Scalia: We... we've done it in another context, though. In affirmative action cases we have indicated that there is a difference between race-based determinations for purposes of hiring and race-based determinations for purposes of firing. Haven't we said that?
Mary Lee Leahy: --Yes, Your Honor, if you are referring to Wygant and its prodigy. But I would point out there, Your Honor, as we did in our reply brief, that that comparison was only done at the third stage of that First Amendment and our Fourteenth Amendment analysis. And that was when you were looking at the remedy to be imposed. I think there was an uncomfortable choice before this Court. Somebody was going to have to be hurt, and the Court admitted that both were intrusive, firing and the hiring, but the Court found one to be less intrusive. But that was at the remedy stage, Your Honor. That is not where we are in this case. We are not... there is not an uncomfortable choice before this Court as to which category of persons to hurt.
Antonin Scalia: Do you think we would make a distinction under Title VII if an employer had an affirmative action program for one purpose versus for another purpose? That wouldn't involve remedy.
Mary Lee Leahy: I think it then would depend on the purpose of the affirmative action program, because the affirmative action program is to remedy a prior wrong.
Antonin Scalia: Do you think we would treat an employer who did... who fired people on the basis of racial preferences the same as we treat an employer who hired people on that basis?
Mary Lee Leahy: Yes, Your Honor, if we are not to the remedy stage of the matter. We contend that the state has the obligation to be neutral when granting the type of benefits that are at stake in this case. One last thing about the hiring. So many areas of public employment... public employment has become such a large employer. So many of those areas are strictly public employment. Law enforcement, conservation, corrections, regulation of certain industries. The Seventh Circuit has effectively cut off hundreds of people from seeking to work in those chosen professions. The important factor is that no reason has been given for taking into account or consideration the person's political affiliation when denying them these benefits. What is the reason that the state should even inquire into the political affiliation of the person who seeks to be a prison guard, or the person who wants to be recalled to his position as dietary manager, or the person who seeks a promotion as a lead worker on an equipment crew on the state highway?
Sandra Day O'Connor: Mrs. Leahy, you concede that if the position were a policy-making one that patronage considerations could survive the First Amendment challenge?
Mary Lee Leahy: Yes, Your Honor. Yes, Your Honor, under Branti. That has never been in dispute in this case. These positions simply do not fall under that category. I would like to go back to one thing about the political participation. In Buckley v. Valeo this Court said that sweeping inquiries into protected areas discouraged the citizens from exercising the rights protected by the Constitution. As the Court knows that case dealt with regulation of election expenditures, ethics and so on. We think that is true in this case, that the detailed inquiry made into these peoples' lives about their political affiliation, will discourage their participation from that.
William H. Rehnquist: Well, I think in Buckley the facts were that anyone who contributed was required to have a fairly detailed summary and so forth. Here, the person, the inquiry is made only when the person seeks a job. It isn't the government inquiring on their own as to what they have done.
Mary Lee Leahy: That is correct, Your Honor. That is correct. They inquire into how you voted in the primary, every two years from 1978 on, and even under certain circumstances, if you weren't old enough to vote in those primaries, how your parents voted in the primaries.
Antonin Scalia: They don't really inquire into your... your philosophical views. I mean, you... they just want to know whether you are Republican. They don't care what you think about any national or international issue, right?
Mary Lee Leahy: If you define being a Republican by having voted in the primary and given money and worked for the party, yes, Your Honor.
Antonin Scalia: Right. Which is... which is another thing that this kind of a system does. It blurs the, what would otherwise be a very sharp distinction between the two parties. People will tend to go into one or the other in order to get a job. And the parties become less... less philosophical. Which, again, some political scientists think is a good thing, so that you don't have a pendulum swing from one extreme to another whenever... whenever the party in power changes. Why isn't that also a good state interest that would justify--
Mary Lee Leahy: Your Honor, I would submit that open and robust debate on the issues is discouraged by this system, and that that is what is healthy for the two-party system.
Antonin Scalia: --Well, I... many think the genius of the two-party system is that it reduces extremes, it reduces robust debates, so that you don't go from capitalism to socialism overnight. It doesn't make that much difference if you put in another party, because a lot of the people in the party are just there for the jobs anyway.
Mary Lee Leahy: But, Your Honor, I would submit that if you go to the Federal Government and you go to those states that enforce a true civil service system without considering these factors, the party has not been any different in that regard.
Antonin Scalia: It is clear that there are no philosophical or political views that are inquired into, simply party affiliation. If you voted as a Republican it doesn't matter if you, you have a picture of Franklin Roosevelt on your wall and believe in everything he stood for. Right? It is just whether you voted as a Republican.
Mary Lee Leahy: No, Your Honor. Let's take the contributions for a moment. The contributions to the party or its candidate are traced, and therefore the support of a particular idea... say there is a faction in the party in Illinois that is on outs with the incumbent faction of that party. That would lead to a review of the philosophical beliefs of the individual person seeking the state benefit. The fact he contributed to one candidate in the Republican primary over the other. So I think it goes beyond that, Your Honor, when you are looking at work and at contributions, because those, as we have alleged, could be for candidates as opposed to the party itself.
William H. Rehnquist: Is there something in the record that indicates the party did look into that sort of a thing, whether you were opposed to one faction of the party?
Mary Lee Leahy: Your Honor, the complaint alleges that the contributions, the financial support to candidates or to the party is taken into consideration. As to whether... there is nothing in the record as to a particular person, there was a primary battle that contributions were made to one and not to the other. No, Your Honor, we are here on a motion to dismiss. I would like to reserve the rest of my time for rebuttal.
William H. Rehnquist: Very well, Ms. Leahy. Mr. Sullivan.
Thomas P. Sullivan: Mr. Chief Justice, and may it please the Court: I would like to start by reframing the issue as stated by Mrs. Leahy, and as contained in the complaint which Judge Baker dismissed and which the court of appeals en banc affirmed. The alleged system is not a strictly partisan political system. The system in Illinois that is alleged in this complaint is consistent with the Illinois personnel code, which Justice O'Connor asked about. That code was and still is in operation. Under that personnel code, any applicant for a job, promotion, transfer or... not rehire, but job, promotion or transfer must be tested and evaluated, evaluated by superiors in case of promotions, tested by the applicable agency in case of a new hire. With respect to new hires, the personnel code requires that the persons who take the test are listed in a group from the highest-ranking group, or they can... you can take the three highest on the list of... passed the test. And promotions must be made from a list of qualified employees. All of the people who were hired or promoted under the system alleged in the complaint qualified under the Illinois personnel code, and it is not alleged to the contrary. But the code allows play. There is play in the code within those qualified people. And what it allows is that the persons who are at the heads of the department or the hiring authority may select among those qualified, persons who are recommended, persons who are political supporters, or persons who are friends of those who recommend and are political supporters, so that we start out with the underlying proposition that the Illinois personnel code is not in anyway defeated or diminished by this system and that no one who is not qualified for a job or a promotion has been hired or promoted.
Sandra Day O'Connor: Mr. Sullivan, were all of the named plaintiffs here processed through that civil service system and tested and examined and rated and so forth?
Thomas P. Sullivan: Yes, they were. All but Moore were already employed. And in fact... but the answer is yes, and Moore was tested.
Sandra Day O'Connor: And they were included in the list of eligibles for promotion, transfer, et cetera?
Thomas P. Sullivan: Yes. And indeed, Justice O'Connor, two of the plaintiffs, O'Brien and Standefer, who are here complaining about the system, got jobs under the system. Standefer was hired, I think it was 1984, after this system was in place, and claims that he voted only in the Democratic primary. And O'Brien, after a layoff which had nothing to do with politics, a layoff he does not complain about, was rehired, he says after he obtained the support of the Republican county chairman, but he does not say he changed his political affiliation.
Sandra Day O'Connor: Well, we're here on a motion to dismiss, I guess.
Thomas P. Sullivan: Yes. But, I'm telling you what you--
Sandra Day O'Connor: I am just trying to find out whether they all were tested and processed through the civil service system.
Thomas P. Sullivan: --The answer is yes. So that this complaint alleges, and I think if Your Honors were to look at paragraph... I think it's 11(F) of the complaint, at, which is in the brief in opposition record Appendix 7, they allege that in making hiring decisions, and this is within--
Speaker: Where are you reading from, Mr. Sullivan?
Thomas P. Sullivan: --All right. It's in the orange brief in opposition, and it is in the Appendix RA-7.
Byron R. White: Is that orange? Tangerine.
Thomas P. Sullivan: It looks orange to me.
Byron R. White: Oh, I didn't know. Do we have an orange color? Do we have a color in our... do we have that color? [Laughter]
Thomas P. Sullivan: Okay. It's 11(F).
Speaker: 11(F)?
Thomas P. Sullivan: 11(F). And here is the allegation. And that this... also, I would like to point out that at the beginning it says that the hiring decisions are substantially motivated by political considerations. It is not a strict test; it is what consideration is given to this favored class, the ones--
John Paul Stevens: Mr. Sullivan, would it make any difference? Supposing they had a strict test, would you defend it? If you cannot... say the Governor put out an order you cannot be promoted unless you agree to vote Republican next year.
Thomas P. Sullivan: --We would defend such a system. It is not the systems here. Governor Thompson I think would not subscribe to such a system.
John Paul Stevens: Why not, if he believes in the patronage system?
Thomas P. Sullivan: Your Honor, this system... I want to make it clear, Justice Stevens, this system permits the hiring of Democrats. And two of the people here in the complaint--
John Paul Stevens: Yes, but you have to acknowledge you get a head start if you are Republican, I think, don't you?
Thomas P. Sullivan: --Well, that may be, but if you look at 11(F)--
John Paul Stevens: And isn't the legal issue the same whether it is just a head start or a flat qualification? That is what I'm... well, I'm puzzled by your argument.
Thomas P. Sullivan: --I think that if it were a strict political test it would be a more difficult case for us, and we do not have that case.
Byron R. White: Didn't the court of appeals face right up to it?
Thomas P. Sullivan: No, I think that both the district court and the court of appeals recognized that this was a loose system of friendships and political consideration, and not a strict... the loyalty oath to the Republican party test.
Byron R. White: Well, didn't they decide that even if it was it's perfectly okay with... didn't they say that this preference is only... is limited to certain categories?
Thomas P. Sullivan: No, Your Honor. They--
Byron R. White: Well, didn't it say it doesn't make any difference with new hires, for example?
Thomas P. Sullivan: --Yes, they said... they said with respect to new hires you may take these friendship and political connections into consideration among qualified candidates, as did Judge Baker.
Byron R. White: And you can't, and you couldn't get a job without... with being cleared politically. Isn't that right?
Thomas P. Sullivan: Actually it is not. But because, if you look at paragraph 11(F), Justice White, you will see that the categories that they allege here are... for example, or is sponsored by a member of the Illinois General Assembly who is deemed to be a friend or supporter of Defendant Thompson. Now, the Illinois General Assembly for years has been controlled by the Democrats. And Mr.... Governor Thompson has many friends in the Illinois General Assembly who he needs to get his program through who are Democrats. This system permits the hiring of Democrats as well as Republicans, and indeed the hiring of people who have no political affiliation whatsoever. It talks about friends of a Republican. That person could be a Democrat; it could be one with no political affiliation whatever.
William H. Rehnquist: But with respect to the individuals involved here, aren't the allegations that each of them failed to either get a promotion or a transfer or a rehire, and it was because they could not produce any evidence of whatever you call it, loyalty to the Republican party.
Thomas P. Sullivan: They lack the connection or sponsorship of such a person. That is correct. Except that two of them, as I pointed out before, O'Brien and Standefer, were hired under this system.
Byron R. White: How about the others?
Thomas P. Sullivan: Moore was not hired, and Ms. Rutan was not promoted. Mr. Taylor was not transferred.
Byron R. White: Because of the failure to have sponsorship?
Thomas P. Sullivan: They claim that it... they allege--
Byron R. White: Well, that is the allegation.
Thomas P. Sullivan: --That is the allegation, that they failed to have the adequate sponsorship. They do not allege that the persons that were hired or promoted instead of them were not qualified under the personnel code, and indeed they were qualified under the personnel code.
Thurgood Marshall: What is the relationship between friendship and ability?
Thomas P. Sullivan: Well, I think, Your Honor, that there is a... there may be a relationship between friendship and ability, and in--
Speaker: What?
Thomas P. Sullivan: --Well, if you know a person and know his qualifications, it is often better than to employ a stranger. I think that is a matter of common--
Thurgood Marshall: You didn't say knowledge, you said friendship.
Thomas P. Sullivan: --Well, these... it may be that there would be none if you don't know anything--
Thurgood Marshall: Well, what happens to friendship in the primary?
Thomas P. Sullivan: --I'm sorry?
Thurgood Marshall: What happens to friendship in the primary, where Republicans and Democrats go at each other with hammers and tongs?
Thomas P. Sullivan: Yes, Your Honor.
Thurgood Marshall: They are not very friendly, are they?
Thomas P. Sullivan: Often they are very unfriendly.
Thurgood Marshall: So you have temporary friendliness.
Thomas P. Sullivan: That is right.
Thurgood Marshall: Do you need friendliness in this statute to help you? Do you think it helps you?
Thomas P. Sullivan: I am not sure I understand--
Thurgood Marshall: Do you think the word friendship helps you?
Thomas P. Sullivan: --Oh, yes, Your Honor. I think so, because it--
Thurgood Marshall: And how does it help?
Thomas P. Sullivan: --Well, it demonstrates what happens to be the fact, that you do not have to be a Republican under this system to get hired. If... a friend of a Republican can be a Democrat. He can be somebody with no political connection whatsoever. They are not alleging a strict partisan test in this case, nor could they.
Byron R. White: Well, no, but they are alleging a partisan test with respect to these particular people. And these are the people who are before the Court. They didn't have the sponsorship.
Thomas P. Sullivan: That is... that is right, Your Honor, and we are saying that this system--
Byron R. White: Although some other people may not have been discriminated against, these people were, weren't they?
Thomas P. Sullivan: --No, Your Honor, I think not. What is happening--
Byron R. White: You mean... maybe that's the wrong word, but the... but nevertheless they weren't hired because they didn't have Republican connections.
Thomas P. Sullivan: --Well, Your Honor--
Byron R. White: Isn't that right?
Thomas P. Sullivan: --I think that that... you could look at it that way--
Byron R. White: That's what it... that's the way it is alleged. That's what is alleged.
Thomas P. Sullivan: --What we say is that others were hired instead, or promoted. All right? And that there is a major difference between not getting the job and being fired or retaliated against, such as what happened... such as happened in the Branti case and the Elrod case. Or in these other cases, such as Keyishian and Perry against Sindermann and those cases. In--
Antonin Scalia: Right, but that's... that's a different point. That's a different point.
Thomas P. Sullivan: --Yes, it is.
Antonin Scalia: It's not the point that this is not a partisan, I mean, even taking into account the friendship, it seems to me it's still a very partisan thing. It doesn't help you to be a friend of a Democrat, does it? I mean, it isn't friendship, it's friendship with a Republican. I still consider that partisan.
Thomas P. Sullivan: Yes, that is true. And... or a friend of a member of the General Assembly who is deemed to be a friend of the Governor.
Antonin Scalia: Who is the big Republican.
Thomas P. Sullivan: That's right. I agree with what you're saying, Justice Scalia. The point I want to make is, however, that you... there is no allegation here that any of these people was retaliated against or demoted for his, or his or her job diminished in any way owing to their lack of sponsorship or because they were a Democrat or voted in the Democratic primary.
William H. Rehnquist: Well, of course, someone applies for a transfer and they are denied the transfer, you really wouldn't expect further retaliation, would you?
Thomas P. Sullivan: Well, that person had been in that job in that county for years, Your Honor, so, it wasn't alleged that somebody else got a transfer into that county. He applied for a transfer, he had been working in, whether it was Schuyler or Fulton County, for many years, and wanted to move over to the other county. He was denied that transfer.
John Paul Stevens: Of course, there are a lot of employees who are unhappy, I suppose, because they have been in the same job for years without any opportunity to go elsewhere.
Thomas P. Sullivan: Yes, I am sure there are. I'm sure there are. Both Republicans and Democrats. In any event, Your Honors, we believe and submit to you that there is a major distinction between the... in the hiring context, which Plaintiff Moore has here, and in the lack of promotion, which Ms. Rutan has here, between the kind of situation where you had in Elrod where the political... system caused the person to be fired, or in many of these other cases where the person was demoted when the new party came into office.
John Paul Stevens: Mr. Sullivan, do you think that distinction is strong enough to support a statute that said no prison guard shall be hired who are not Republicans?
Thomas P. Sullivan: I think it would be, Your Honor, in light of the countervailing state interest, but--
Speaker: Which is?
Thomas P. Sullivan: --Which... well, which are that to engender activity and support in the two parties, to have increased participation in the political process, an incentive to those employees to do well who have supported the party, and to provide good representatives of the incumbent party, and--
Sandra Day O'Connor: Don't you think that interest can be served by the partisan appointment that goes on for policy-making employees?
Thomas P. Sullivan: --Well, Your Honor, in many respects the people who are in the jobs that are lower than the policy making are the ones who the public deals with, and that... those are the ones that have the interaction with the public and who the incumbent administration will be judged by. And it is not unusual, it seems to us, that the incumbent administration would want to have persons who support them rather than their opponents out there dealing with the public.
William H. Rehnquist: Isn't a part of the reason too, Mr. Sullivan, you want to be able to have each party get people to serve as poll watchers and election judges and challengers, the very gritty kind of work at various elections. And the way you get them to do that is promise them... you can't promise them they are going to be secretary of state or attorney general. You promise them they'll be a bailiff's assistant or something like that.
Thomas P. Sullivan: Yes, Your Honor, that... that is another consideration that is there, and the activity in the party between the elections is another important thing here that is served by this system. Another factor I think that's important to consider, although it is not dispositive, I don't think any of these points is dispositive, but I think to look at the history of the United States and to see that any one of the state legislatures that wishes to impose a strict civil service system, take a test, the top one gets the job, they are all free to do that.
John Paul Stevens: Yes, but what do you say, Mr. Sullivan, to your opponents argument that a lot of them have done that and the two-party system has survived quite well in those states?
Thomas P. Sullivan: Well, perhaps that is so, perhaps it isn't so. But isn't it up to each state and each mosquito abatement district and each county and each village to decide that for themselves and to--
John Paul Stevens: Well, Judge Ripple made the suggestion that we might understand these issues a lot more if we had a full hearing at which the parties could develop their evidence and show how valuable the system is. I don't know, maybe you're dead right. Maybe you won't get any prison guards if they don't agree to vote Republican. I just don't know. He thought you ought to have a hearing on it, but you think we can all... we can take judicial notice of all this history.
Thomas P. Sullivan: --I think the history is very well defined; it's all in the books. Thomas Jefferson apparent... according to the books I have read, was one of the leaders in the hiring of his political supporters, and for good reason, for obvious reasons. And I am not talking, Justice Stevens, about the secretary of state.
Thurgood Marshall: Isn't there a little difference between Thomas Jefferson's day and my day?
Thomas P. Sullivan: Oh, yes, Your Honor, there is... there is lots of things--
Speaker: Well, let's talk about today.
Thomas P. Sullivan: --All right, I am talking about today, and I say that under the system that we have in... take Illinois today. Illinois today, of the five state offices that are elected, three are in the hands of Democrats and two... one... of the four, one is in the hands of the Republicans. Now, the Illinois General Assembly, which is controlled by the Democrats, could at any time... the Democratic... if they didn't like this system could introduce a statute to change it and to change this personnel code to say of those three top applicants you must take the one that tested the highest. They have not sought or seen fit to do so. The question then is does the First Amendment require a strict civil service system that cannot take any consideration into political factors or friendship factors. And it is our submission to Your Honors that it does not. That it has never been thought to do so, and it does not. And to suggest that every time one of these local governments made an employment decision that they were risking a Federal lawsuit is going very far and would be most disruptive of the local governments and the operation of the local governments, which ought to be left to those--
Antonin Scalia: They do run a lawsuit now under Elrod when they make a hiring decision.
Thomas P. Sullivan: --A firing.
Antonin Scalia: I'm sorry, a firing decision. But you say that's... that's not likely to be as numerous as promotions, transfers, hiring.
Thomas P. Sullivan: Well, when you have a firing you have a specific person who has been retaliated against. When you have a promotion you can have four or five people that submit their applications for the promotion. Each feels he's the... he or she is the best qualified. Similarly with respect to a job. You have, you can have multiple applicants for that job. Each of them can say I wasn't picked because I was not a friend of a Republican, or something like that. So there you are.
Speaker: Well, what [inaudible]?
Thomas P. Sullivan: We say, Justice White--
Byron R. White: Because it was alleged here that is exactly what--
Thomas P. Sullivan: --Right, and we... just to face right up to that, we say that that is not a basis for claiming a violation of the First Amendment right.
Byron R. White: --Whether it's a hiring or a promotion or what.
Thomas P. Sullivan: Right. So long as the personnel code has been followed, the person is qualified for the job, and so long as there is no retaliation, there is no adverse action taken against anyone.
Sandra Day O'Connor: Well, I guess you have to acknowledge that is some kind of a burden on the right of political association of the employee, that system you describe.
Thomas P. Sullivan: Well, we--
Sandra Day O'Connor: It does that in some fashion.
Thomas P. Sullivan: --We submit, Your Honor, that the burden of the... as you, when you compare the subtle expectations in a job, which the Court in the Wygant case and the Johnson case for example looked at, and compare that to the... the person who is seeking a job and doesn't get the job, he is in no different... he or she is in no different position than when he started. Or the promotion. Ms. Rutan still has the job she had. Those interests are not sufficient when weighed against the other interests, the countervailing interests, to require that First Amendment exclude all political and friendship considerations from these decisions.
Anthony M. Kennedy: Do you want us then to decide the case on the assumption that the Illinois system does coerce political activities and political beliefs?
Thomas P. Sullivan: No, Your Honor, and it is not--
Anthony M. Kennedy: Well, I thought that... that the opposite was your point. You are justifying it by saying that it encourages party activity in those that are partisanship--
Thomas P. Sullivan: --It does in some. It does in some.
Anthony M. Kennedy: --Well, how... you can't have it both ways. It either coerces party membership and party activity or it doesn't. Which is it?
Thomas P. Sullivan: Well, Your Honor, in... this system will benefit... will benefit both Democrats and Republicans--
Anthony M. Kennedy: I am not talking about who is benefit and who is hurt. I am asking about the proposition whether or not this is coercive of a person's political beliefs and political expression and political participation?
Thomas P. Sullivan: --I... I do not think it is.
Anthony M. Kennedy: Well then, I don't see how it serves the interest that you have been claiming in the first half of the argument that it does, that it promotes party... that it promotes the party-- --You ought to tighten it up a little.
Thomas P. Sullivan: Pardon me?
Antonin Scalia: You ought to tighten it up a little; it's too loose. It's not doing the job you want it to do.
Thomas P. Sullivan: What I am trying to say is that I think it works both ways. It does give benefits to those who support the incumbent party, and it also--
Anthony M. Kennedy: All right, so then you want us to decide the case on the assumption that this is coercive of political beliefs and political expression.
Thomas P. Sullivan: --I am not, Your Honor, and I was about to say that... that it also... this system also can work to the benefit of those who are in the other side of the political aisle, the Democrats can get hired under this system, as two of these plaintiffs have. So, they weren't coerced in their beliefs in any way. And... but whatever, however you want to characterize this system, you are talking about the incidental... the incidental effect on someone who is not selected for promotion or hire. Not someone who has been fired or demoted, or whose job has been diminished in the slightest by the incumbent administration.
John Paul Stevens: Mr. Sullivan, do we know how many people are affected by this practice in Illinois?
Thomas P. Sullivan: Well, we... no, there is--
John Paul Stevens: Nonpolicy-making, nonconfidential people.
Thomas P. Sullivan: --It is, I think the number 60,000 jobs was used. However, there are collective bargaining agreements that cut across this. So the number is not in the record, Justice Stevens.
John Paul Stevens: I see.
Thomas P. Sullivan: Mr. Chief Justice, if the members of the Court have no other questions, that is our submission.
William H. Rehnquist: Thank you, Mr. Sullivan. Ms. Leahy, you have six minutes remaining.
Mary Lee Leahy: May it please the Court: I believe the complaint, read fairly to the petitioners and cross-respondents, clearly makes the point that what happened to these people happened because they did not support the incumbent party. We have clearly met the standard that would be required under Mt. Healthy that political consideration be a substantial or motivating factor. I would like to make just a couple of comments about the state civil service system. In terms of the test being administered and the grades being given, yes, that is in place. But as we pled in our complaint, it is not the department or agency that is making the decision about filling these position. It is the Governor's Office of Personnel. And they superimpose, then, on those who meet the minimal qualifications the requirement of sponsorship.
Byron R. White: xxx make much difference; they both are qualified, as long as the choice is made to pick the well-qualified Republican.
Mary Lee Leahy: No, Your Honor, in this case, specifically pled, that Petitioners Rutan and Taylor were more qualified than who was chosen.
Byron R. White: Well, I know, but it wouldn't... your case would be just as good on... your constitutional argument if they were equally qualified.
Mary Lee Leahy: That is correct, Your Honor. That's the decisive factor. Just a couple of comments about an increase in litigation. We submit that under the rule of law that we seek there would be less likelihood of that, because what we are asking for is a clear rule, thou shalt not, except in policy-making positions. That is a rule that can be clearly understood by the employer. If there is not political hiring and if the office is administered in an even-handed manner, there isn't going to be litigation. We have looked at the circuits, the Second, the Third, the Eleventh and the D.C. circuits that have adopted this kind of rule of law, and there has not been that increase in litigation. We submit that the possibilities are far more in the area of race or sex discrimination, and yet no one would suggest to this Court, at least I hope not, that, if a person is denied a job because of their sex or because of their race, that they have not stated a cause of action. The possibility is far more in terms of litigation in those two areas than it is in this area. We submit that the state of law as it is under the Seventh Circuit requires far more litigation. The Seventh Circuit has held that you do have a cause of action if you are harassed for your political affiliation, but you only have a cause of action for failure to promote if it reaches the level of constructive discharge. But in the harassment claim you don't have to reach the level of constructive discharge. That is asking the courts to litigate not only the protected right, but then does it reach the level of constructive discharge. It does not give sound guidance to the employer who has to make the decision. We are asking this Court to hold that political affiliation, which was considered constitutionally impermissible in discharge, that those factors are constitutionally impermissible in denial of these very important public benefits. The Court has repeatedly... it was explained in Perry, in Elrod, in Branti. The principles were reaffirmed in Connick, they were reaffirmed in McPherson v. Rankin. Those principles of law are good, and they should apply in this case. The state may not deny a benefit, these benefits, for constitutionally impermissible reasons. Thank you.
William H. Rehnquist: Thank you, Ms. Leahy. The case is submitted.


Warren E. Burger: We'll hear arguments next in 5781, Rakas and King against Illinois. Mr. Weller, I think you may proceed when you're ready.
G. Joseph Weller: Thank you Mr. Chief Justice and may it please the Court. Your Honors, the basic issue in this case is rather passengers who were legitimately present in an automobile that was stopped by a police have standing the challenge to the constitutionality of warrantless search of that automobile. We advance two grounds for such standings; one is the legitimately present on the premises rule, and the other is the directed that theory for standing. The facts in this case can be briefly stated. The two petitioners in this case, Frank Rakas and Linnie King were convicted of armed robbery in an Illinois court, and the most significant evidence against them was a sawed-off rifle, which was identified by one of the victims of the robber has being the same weapon which was used by the mask robbers. The two robbers in the robbery in question made their getaway from the site of the robbery in a blue Plymouth Roadrunner which was taken from one of the robbery victims. About 10 or 15 minutes later, the policemen --
Warren E. Burger: When they found them possession of that car?
G. Joseph Weller: The car was subsequently abandoned. However, prior to that time, the police officer who was about four miles north of the robbery site noticed a -- not a blue Roadrunner but a purple Roadrunner with a different license number. He followed this vehicle to a lounge, saw the petitioners and two female companions exit and go into the lounge, and then he returned to his original site near the highway to look for the real getaway car since he knew it was a different license number. About that time, he heard a radio call noting that the getaway car had been found abandoned, so he considered the possibility that the robbers changed cars. He went back to the lounge, called the sheriffs and dispatcher for a description of the suspects. He was not given a description, instead he gave him his description of the petitioners who he had seen and he was told that one of the petitioners who I believe would be Mr. King matched the description of one of the robbers. As a matter of fact however, we learn from the trial that the robbers in this case were wore ski mask and they wore clothing different from what the petitioners from wearing at the time of their arrest. In any event, police officer waited until petitioners left the lounge. He followed their car down the highway toward the robbery site, and it was near the site in which a number of police vehicles stopped the car in which petitioners were riding and the search and question was conducted. Now during the --
Harry A. Blackmun: Mr. Weller in your opinion, was there ever an arrest?
G. Joseph Weller: In my opinion, there was not an arrest before the search.
Harry A. Blackmun: Not before the search, I want to be sure about that. You so conceive.
G. Joseph Weller: No arrest before the search. There was also no consent for the search. In any event during the motion suppressed hearing, both petitioners agreed that they did not own the car in question. The car was owned by one of the female companions who happen to be the former wife of petitioner King. The trial court decided that since neither the petitioner own the car that they did not have standing to contest the search and their motion suppressed then was summarily disposed off on that grounds. The trial court nor the appellate court discussed the legitimately on a premises rule which we rely upon here.
Warren E. Burger: For now, that language that you have paraphrased at least from our opinions related to dwelling houses did it not?
G. Joseph Weller: That's exactly correct and I believe the issue in this case contrary to what the respondents brief would suggest is whether this rule does apply to automobiles.
Warren E. Burger: Many cases have made sharp distinctions between searches of automobiles and homes have they not?
G. Joseph Weller: I acknowledge that Your Honor. However, the major distinction which has been made between automobiles and homes is the mobility of an automobile. And as a result of that, it's generally been held that the police have a greater right to conduct warrantless searches to automobile.
Warren E. Burger: Does it not also rest on expectation of greater privacy in the home, in an enclosed home than in an automobile?
G. Joseph Weller: Recent cases have dwelled upon the point that there is a lesser expectation of privacy in an automobile. However, there is ample authority also for the proposition that not withstanding, there is a substantial right of privacy in an automobile. Now, I think maybe --
William H. Rehnquist: Well, if standing is a prudential rule, doesn't it make some sense to say that if automobiles are subject to less rigorous substantive requirements as to search and seizures, they're also subject to stricter standing requirement?
G. Joseph Weller: I don't think so unless you can say that there is absolutely no expectation of privacy in automobile. And because obviously, we know the owner would have standing to conduct the search.
William H. Rehnquist: If you could use both to zero, I mean you never get an automobile case, but if you're for simply talking about diminished expectations of privacy as compared to a house, then wouldn't it make sense to say there are stricter rules of standing too because we don't consider the interest in privacy as great in an automobile as we do in a house?
G. Joseph Weller: Of course, it is diminished. But as I was saying, the owner of the automobile still has standing. Now of course, the owner of a house would have standing. We to say that there is a difference between the guest but not the owners. There is a differential between owners and guests same in both --
William H. Rehnquist: Well as the Chief Justice has commented, we have differentiated between houses and automobiles for purposes of substantive Fourth Amendment inquiries; doesn't it make sense to differentiate between them for standing purposes too?
G. Joseph Weller: No, I don't believe so because as long as the right of privacy exists and someone can be the victim of a Fourth Amendment violation, be it an automobile or a house, you should have standing to raise that issue.
William H. Rehnquist: Well, are you arguing an injury in fact that if it your trial evidence is introduced against you which has been obtained in violation of Fourth Amendment, you can object to it eventhough you didn't own it? It wasn't on and but you weren't on the premises when it was taken? Are you arguing of simply do away withstanding?
G. Joseph Weller: Oh, absolutely not. I think that would be a perhaps --
William H. Rehnquist: Well then, what is it mean to say you're the victim of an unlawful search?
G. Joseph Weller: The victim is one who actually suffers an invasion of the privacy which he had and his reasonable expectation of privacy. I believe that a passenger in automobile does have that reasonable expectation of privacy.
William H. Rehnquist: Well how about supposing that the police go to A's house and searched without a warrant and find a letter that has your finger prints on it and you were not in the house at the time the search occurred and the letter did not belong to you, nonetheless, it tends to incriminate you. Do you think you should have standing to object to the introduction of that at your trial?
G. Joseph Weller: Not under the legitimately on a premises rule which I have advanced. You have to be present under Jones versus United States to have that reasonable expectation of privacy, to have that necessary interest in the premises search.
William H. Rehnquist: Haven't been a victim of the search then?
G. Joseph Weller: I would have to concede that if you're not present, you were not be a victim on the search, but if you are present you have the expectation. You have an interest in the premises search and I see no reason to differentiate between automobiles and houses.
Warren E. Burger: When you indicate at what point precisely is right of privacy you speak of was invaded, that is was it invaded when they told them to get out of the car?
G. Joseph Weller: I think it was invaded when the car stopped.
Warren E. Burger: -- stopped the car?
G. Joseph Weller: I believe it was invaded to several points, including when the car was stopped and --
Warren E. Burger: Now, where's the first point where the privacy was invaded?
G. Joseph Weller: When the car was stopped Your Honor.
Warren E. Burger: And then the next time?
G. Joseph Weller: When the car was searched.
Warren E. Burger: How about when they told them to get out of the car?
G. Joseph Weller: That's correct, that would be another time and I think --
Warren E. Burger: Haven't our cases indicated a broad right when a car is stopped to search the car, search the people?
G. Joseph Weller: I don't believe that it is quite broad enough to allow a search of a car without probable cause.
Potter Stewart: Because as I understand that the validity of this search has never been determined by the lower court.
G. Joseph Weller: That's exactly true.
Potter Stewart: And even if we decided in your favor, all you ask us to do is to remand it to the state court that yes, the -- to determine the validity of the search, is that right?
G. Joseph Weller: That's correct.
Potter Stewart: So that -- that's not before us not at all, isn't it?
G. Joseph Weller: No, it's not. I believe that the respondent in this case has presented an argument which simply does not exist in this case. The first case we rely on here is Jones versus United States which presented two tests or grounds for standing; one is the automatic standing rule which we limited to possess retype offenses which says was not, and the second alternative holding is the legitimately on the premises rule which we rely on. That in Mancusi versus DeForte was stated to have general application.
Potter Stewart: Although it fact, it was a possessory offense in Jones was it not?
G. Joseph Weller: That is true, but I think it's --
Potter Stewart: The dilemma perceived in the Jones' opinion, Mr. Justice Frankfurter's opinion for the court in Jones was eliminated and Mr. Justice Harlan's opinion for the court in Silence; isn't that correct?
G. Joseph Weller: That's correct.
Potter Stewart: I may not have the identification of the members of the court exactly correctly; that's my recollection. But in any event, the Simmons' decision eliminated the perceived dilemma in Jones, the dilemma perceived by the opinion in Jones, isn't that correct?
G. Joseph Weller: That is correct.
Potter Stewart: And that had only to do with possessory offenses?
G. Joseph Weller: For the purposes of argument, I would say eliminated offer, I think since I haven't briefed that point whether that actually eliminated, I won't.
Potter Stewart: But with respect to possessory offenses that Simmons made clear that a person didn't have to in fact admit possession in order to try to exclude the evidence, is that correct?
G. Joseph Weller: That's correct.
Potter Stewart: And that was the dilemma perceived in Jones?
G. Joseph Weller: That was a dilemma which was faced with the automatic standing which I do not rely upon here.
Potter Stewart: I understand that.
G. Joseph Weller: I might add that Mr. Justice Harlan also wrote the Mancusi versus DeForte opinion in which did not involve the posssessory offense, and in his opinion he clearly notes that there is a distinction between the two tests. It would appear to me that the standing is based upon what the Fourth Amendment protects which is the right of privacy not necessarily property. Therefore, if one has that expectation of privacy he would have standing.
William H. Rehnquist: But if you have an expectation of privacy, your Fourth Amendment interests are implicated are they not? I mean, isn't that almost saying that there is no standing rule separate from a substantive violation of the Fourth Amendment?
G. Joseph Weller: Well certainly if there is a violation of Fourth Amendment, one would have to have standing.
William H. Rehnquist: Well then, what's the point of a standing rule? The standing rule assumes that some people may have a Fourth Amendment claim that they could make if they only had standing.
G. Joseph Weller: Well, I agree with that though if one is the victim of a Fourth Amendment violation, he should have standing.
William H. Rehnquist: Well then, you are arguing first injury in fact or doing away with standing?
G. Joseph Weller: Oh no because if you aren't a victim of the illegal police conducts, if it was somebody else who was a victim, you would not have standing or I would not have standing. But if you are the actual victim, then you should have standing. My contention here is that my clients were the actual victims of the police action. There was a Fourth Amendment violation. They were the victims, therefore they have standing.
William H. Rehnquist: And how again do you define the term victim?
G. Joseph Weller: Victim is one who had a reasonable expectation of privacy at the time of the contested police conduct. In this particular case, they had that expectation because they were legitimately present in the car.
Warren E. Burger: If they had been found in a stolen car, you wouldn't be here wouldn't you?
G. Joseph Weller: I would hate to make that argument. However, it has been made successfully in a few courts.
William H. Rehnquist: What if they were ten feet away from the car?
G. Joseph Weller: It seems to me that if they were that close, they might have standing. I think there is a case that I'm aware of where one did leave the car momentarily and was held not to have standing.
William H. Rehnquist: Suppose he never been in the car but he was just ten feet away from it?
G. Joseph Weller: No --
William H. Rehnquist: Would he be "legitimately on the premises" as you to use the term under --
G. Joseph Weller: That's a difficult question and it doesn't apply here. My feeling is if you've never been on the premises, perhaps not. But that's not the case we have here.
John Paul Stevens: Other that you've never been in the premises you don't have to decide whether you're legitimately on the premise?
G. Joseph Weller: I think that makes good sense Justice Stevens. Now, we also have another issue in this case which concerns what is known as directed at theory. Under this theory, one who has the search intentionally directed at him would have standing. The theoretical basis for the theory is that the purpose of the exclusionary rule is to deter unlawful police conduct and the best deterrents would be giving standing to one to whom the search was personally directed at.
William H. Rehnquist: Wouldn't it even better deterrent be to simply to do away with standing and say that anyone who has evidence offered against him at his trial, it was seized in violation of Fourth Amendment ought to be able to object to it?
G. Joseph Weller: That would be better deterrent. However, I think that the case law would suggest that some sort of limitation is an order.
Byron R. White: You will argue that next time?
G. Joseph Weller: Perhaps Your Honor. If there are no further questions, I like to reserve my time for rebuttal.
Warren E. Burger: Very well. Mr. MacKay?
Donald B. Mackay: Mr. Chief Justice and may it please the Court. To grant standing to the petitioners here, we feel would constitute a radical departure from the well-reasoned and readily enforceable rule of standing which is currently based on the right of privacy concept. The dictates of public policy, we submit Your Honors, strongly support the continued application of the reasonable expectation of privacy standard. To expand standing as petitioners would suggest under a directed at theory would simply be to say to anyone charged with a crime that he may mount a challenge to a search which could not have conceivably affected his personal interest and privacy. This approach Your Honors we believe would abandon the traditional rationale behind the Fourth Amendment cases; that is the primacy of the protection of privacy and would replace it with a cumbersome standard of expediency.
Byron R. White: What about the guest in the house and the search to the house, does the guest have standing?
Donald B. Mackay: Your Honor, in order to answer that question, I think we have to look to what reasonable expectation of privacy the guest had.
Byron R. White: You say there is no general rule about that?
Donald B. Mackay: It is our position Your Honor that Mr. Justice White that Simmons --
Potter Stewart: You're right, it Simmons.
Donald B. Mackay: Is it Simmons?
Potter Stewart: Yes.
Byron R. White: Yes.
Donald B. Mackay: That Simmons although it -- excuse me, I'm getting confused. That Jones, although it purports to have language to the effect that one legitimately on the premises automatically has standing by virtue of that alone is only dicta in Jones and --
Byron R. White: What if it isn't? What if we thought that was the general rule?
Donald B. Mackay: Then, I would submit to Mr. Justice White that this Court should seriously consider abandoning.
Byron R. White: Because it might govern the case for the automobile or guest?
Donald B. Mackay: Not only that, but because --
Byron R. White: Well, but so, but it would?
Donald B. Mackay: Yes.
Byron R. White: So if I had a guest in the house and if he were had standing to object to a search, but then left and I was taking him home and there was a search in my car, he would have as much of a standing in the car to object in the search to car as to the house?
Donald B. Mackay: No, we do not concede that Your Honor.
Potter Stewart: Well it depends upon -- is it necessary to make such a general rule if depends upon what the search was on or been the house if it was a search of the guest suitcase or pajamas or hip pocket is one thing. If it was a search of the owners of the house's wine cellar, it's something else, isn't it?
Donald B. Mackay: Yes Your Honor.
Potter Stewart: It's not -- you don't have to talk about the expectations of privacy, just talk about whose Fourth Amendment right was violated and adversely for the Fourth --
Donald B. Mackay: Correct. Well, you don't have to answer my question but my question was directed that as to whether or not --
Potter Stewart: Is the proper answer yes or no?
Donald B. Mackay: Whether -- I just want --
Byron R. White: You would agree that the dictum in Jones indicated that the guest has -- may have standing.
Donald B. Mackay: That's correct. I agree that that is what the dictum in Jones says. I disagree that that's --
Byron R. White: In view of -- and to the extent that is the law would it be as applicable to an automobile as to house?
Donald B. Mackay: Yes, it would Your Honor.
Byron R. White: That's all I really wanted to know, thank you.
Potter Stewart: Isn't the real test of standing is whose Fourth Amendment right was violated?
Byron R. White: Yes Your Honor.
Potter Stewart: And a person has a Fourth Amendment right against unreasonable searches and seizures in this person's papers and effects, and forgetting about person for a moment because that's not involved here, that's an arrest situation. There his papers or his effects, if he has ownership of them, titled to them, or if he has possession of them, isn't that correct?
Donald B. Mackay: That's correct.
Potter Stewart: If he's a stranger to either title of possession, his Fourth Amendment rights can hardly be violated, can they?
Donald B. Mackay: That's correct. This Court has held that Fourth Amendment rights were private and may not be vicariously asserted. To get back to something which I think is suggested by Mr. Justice White's question --
Byron R. White: Or by Jones.
Donald B. Mackay: Or by Jones.
Byron R. White: Yes.
Donald B. Mackay: It is the --
Byron R. White: And if Mr. Justice Stewart's presentation is -- he represents a law, the dictum is obviously wrong.
Donald B. Mackay: The desire position Your Honor. But we see a distinction Your Honors between the privacy or the reasonable expectation of privacy that one enjoys in his home or in a residence and a reasonable expectation of privacy that a passenger in an automobile should enjoy. And it is our position Your Honors that the petitioners here lack a sufficient expectation of privacy to object to the search and seizure as being an invasion of their privacy.
Potter Stewart: What if the passenger had been the title owner of the automobile?
Donald B. Mackay: Then he has standing --
Potter Stewart: Even riding in the backseat as a passenger, but the fact is he owns the automobile?
Donald B. Mackay: Then under our argument Mr. Justice Stewart, that individual would have standing because his privacy --
Potter Stewart: Well, his ownership --
Donald B. Mackay: And that vehicle is being violated.
Potter Stewart: Well, his privacy was no more violated in the one case and than in the other.
Donald B. Mackay: Well, I suggest that as the owner of the vehicle, he has a paramount expectation of privacy in the contents of his vehicle --
Potter Stewart: Well, he has a right not to have his automobile victimize by an unreasonable search and seizures.
Donald B. Mackay: Yes.
Potter Stewart: John Smith doesn't have a right that that other fellow's automobile not be subjected to an unreasonable search and seizure; isn't that it?
Donald B. Mackay: Yes Your Honor.
Potter Stewart: Because you do a privacy, the privacy interest is the same in both cases.
Donald B. Mackay: Well, we take the position that it is not Your Honor that a passenger in an automobile has a diminished expectation of privacy. The paramount --
William H. Rehnquist: Is that consistent with your answer to Mr. Justice White's question that the legitimately on the premises are rule for houses carries over automatically to automobiles? I thought you said that you thought it did. Only did once.
Donald B. Mackay: Justice Rehnquist, that is exactly what I responded to Mr. Justice White. We are here attempting to draw a distinction between what the reasonable expectation of privacy is. Now, I take issue with the dicta in Jones that one legitimately on the premises by virtue of that fact alone should be found to have standing and I would suggest that if this Court reads that to be the law of Jones, that this Court should then overrule that to the extent that it is inconsistent with our position.
Thurgood Marshall: Or not applied to court.
Donald B. Mackay: Yes Your Honor, Mr. Justice Marshall.
John Paul Stevens: Mr. MacKay, I have to confess I'm somewhat puzzled. Do you think the standing turns on property concepts are expectation of privacy concepts?
Donald B. Mackay: I believe it turns on expectation of privacy --
John Paul Stevens: So then, you would not differentiate if you have four people riding in a car 11 o'clock at night out in the country somewhere, you'd say they all have precisely the same expectation of privacy regardless of who owns the car?
Donald B. Mackay: No, because it is our position Your Honor, Mr. Justice Stevens that the owner of the car -- assuming he is present in your hypothetical.
John Paul Stevens: We'll assume we will take it in both ways. Would you suggest he has an expectation that he's not present but the four people present have no expectation?
Donald B. Mackay: I would suggest Your Honor that the owner of the vehicle has a paramount right of expectation of privacy to the contents of that vehicle.
John Paul Stevens: Regardless of whether he is present?
Donald B. Mackay: Yes.
John Paul Stevens: And the persons present never have an expectation of privacy?
Donald B. Mackay: The operator of the car and perhaps on the theory of agency that he is the agent of the driver maybe placed in the shoes of the owner as being the surrogate owner to assert the right of privacy.
Thurgood Marshall: That's in robbing, what about the leased cars and the rented cars?
John Paul Stevens: With a passenger in a taxi cab, he'd never have an expectation of privacy I guess. Open season on taxi cabs.
Donald B. Mackay: No Your Honor, I'm --
Thurgood Marshall: You're on a leased limousine.
Donald B. Mackay: As to the --
Thurgood Marshall: What about a leased jet?
Donald B. Mackay: As to leased modes of transportation Mr. Justice Marshall, the only way I think I can answer your question is to respond that the lessee here is the surrogate owner who has a -- the primacy, the primary protection of the interest of privacy in that vehicle or airplane.
Thurgood Marshall: Well I can see that the answer that I have for, I don't have any.
Donald B. Mackay: I'm sorry.
Thurgood Marshall: I don't have any answer for it. That's why I have a difficulty with your argument. If you just straighten me out by that --
Donald B. Mackay: Well I'm sorry. Your Honors, returning again to the degree of expectation of privacy that one may reasonably expect as a passenger in an automobile, we should take into consideration that the primary purpose of an automobile as this Court has recognized is transportation. An automobile seldom serves as ones residence or as the repository for ones personal effects with papers.
Warren E. Burger: We have on some occasions observed that an automobile is also an instrument of criminal conduct.
Donald B. Mackay: Yes Your Honor.
Warren E. Burger: Which homes may or may not be but considerably less so.
Donald B. Mackay: And I believe that Mr. Chief Justice that your latest -- your comment gives more force to our argument that the rights of passengers on an automobile to privacy are significantly diminished.
Potter Stewart: Is it your submission that nobody but the record owner of an automobile has standing to complain of a search or seizure of that automobile?
Donald B. Mackay: Essentially yes Mr. Justice Stewart with the qualification that someone acting as the owner's agent in possessing or driving the automobile would --
Potter Stewart: Somebody driving it with the owner's permission and who is the only person in the automobile, and therefore clearly has sole possession of it.
Donald B. Mackay: Right.
Potter Stewart: It might also have --
Byron R. White: What if the passenger in its motion to suppress says I was in possession, I was a passenger but I was in possession of the automobile because I had borrowed it from somebody or I have leased it from somebody --
Donald B. Mackay: Your Honor --
Byron R. White: Or I have stolen it from somebody?
Donald B. Mackay: Mr. Justice White, I think in that -- that's what we're dealing with here. The petitioners never alleged that they were entitled the possession of the car.
Byron R. White: In any of those circumstances, you would think he had standing?
Donald B. Mackay: Yes.
Potter Stewart: Anybody who is in fact in possession of the automobile?
Donald B. Mackay: Yes. And for instance in this case, if the petitioners were to have demonstrated to the trial court that they were in joint possession. If you want to indulge in such a concept, I would have no quarrel.
Potter Stewart: You might have a quarrel, but it would be a harder case.
Donald B. Mackay: Well, but I would have no quarrel with granting them standing at least to challenge the legality of the search.
Byron R. White: Or if he's alleged that he was in possession of the gun.
Donald B. Mackay: I beg your pardon?
Byron R. White: Or if he had alleged that he was in possession of the gun.
Donald B. Mackay: That's correct.
John Paul Stevens: If he's indicted for possession of the gun. That would have made it a difference when it's bank robbery.
Donald B. Mackay: Well in that case Mr. Justice Stevens, you're then talking about a possessory offense.
John Paul Stevens: That's correct.
Donald B. Mackay: -- and we bring into play the remaining language in Jones which is not been dealt with in Simmons.
John Paul Stevens: It seems to me, if I understand your argument correctly, you're saying in with respect to non-possessory offences that standing turns on property concepts?
Donald B. Mackay: Correct.
John Paul Stevens: You kind of asking the court to go back to pre-caps days.
Donald B. Mackay: No, not really on property concepts Mr. Justice Stevens --
John Paul Stevens: Ownership's possession, agent of owner and all that, but the privacy doesn't have anything to do with it because I understand your argument.
Donald B. Mackay: Well Your Honor, it may be --
John Paul Stevens: You used the word privacy to say its present when you're an owner but there is no privacy present when you're a non-owner and a non-agent. So in final analysis, you're making a property type analysis but using the word privacy to describe, which is pre-caps analysis.
Donald B. Mackay: I will concede that with this clarification. I know of no practical way to determine the underlying legal factual question as to the -- what reasonable expectation of privacy anyone has in a particular location under particular circumstances without at some point reverting to property concepts in order to make that distinction.
John Paul Stevens: Do you think a judge could come to the conclusion that when four or five people are riding along in a car, the car stopped and everybody is ordered out of the car and everybody searched that they could feel that there has been some infringement of their constitutional rights. You don't think a judge could make that kind of a determination?
Donald B. Mackay: Your Honor, I'm not saying that. If the individuals have personally been searched, their individual right to remain free from unreasonable searches has been violated, but when the automobile is searched --
John Paul Stevens: If just the vehicle is searched, they don't have any right?
Donald B. Mackay: That's correct. Being legitimately on the premises, we submit without more, is insufficient to confer standing on these petitioners. This concept presupposes that one who is “legitimately on the premises” has a reasonable expectation of privacy in the premises and in its contents, anywhere in the premises simply by virtue of the fact that he or she is there. It is our belief Your Honors that this Court when it decided Jones versus United States in 1960 did not intend to create such a rule notwithstanding the very clear English language contained in Jones to the effect that the court was considering two separate grounds for standing. I think we must remember that Jones, first of all, was attempting to define an aggrieved person under Rule 41 of the federal rules of criminal procedure. It dealt with a possessory offense where it felt that the vise of prosecutorial self contradiction and the potential for self-incrimination required the court as a matter of public policy to grant standing to the petitioner in that case. The court found in Jones that the same possession which would grant standing was the very same possession which would convict. I might also point out that Jones which was decided in 1960 was decided prior to this Court's decision in Mapp v. Ohio which came the following year, and I just doubt Your Honors whether this Court in 1960 when it announced Jones intended to formulate a rule of standing.
Byron R. White: What do you say about Brown? Brown against United States, 411 U.S. Here's the footnote, “presence of the defendant at the search and seizure was held in Jones to be a sufficient source of standing in itself”, and that proceeds to say that of course in Brown, there was the defendant was not in the premises at the time.
Donald B. Mackay: Your Honor, the only way I can answer that is to refer the Court to the dissent of Justice Black in Mancusi versus DeForte where he labels the --
Byron R. White: Of course, this is a court opinion.
Donald B. Mackay: I understand that.
Byron R. White: Residing what the -- reporting to say what one of the court holdings is and announcing of what the existing rule of lawyers. Perhaps that didn't approve it but it certainly indicated it was a rule.
Donald B. Mackay: Your Honor, it is our position that if this Court finds that is the rule in Jones, then Jones should be modified by the opinion in this case to strike being legitimately on the premises as an independent ground for standing because the factors which were present in Jones to give rise to that are no longer in existence. We now under Simmons, we no longer have the potential for self-incrimination. We still have left --
Byron R. White: -- the ground called Simmons, after Simmons?
Donald B. Mackay: That's right. And as a matter of fact, Brown, there is language in Brown would suggest that the continued vitality of Jones in light of Simmons is questionable in non --
Byron R. White: Only in the automatic standing taken with regard to possession.
Donald B. Mackay: Now, the way I read Your Honor -- the way I read Brown Your Honor is that it reserves -- excuse me?
Byron R. White: Nothing go ahead, I'm sorry.
Donald B. Mackay: It reserves for future consideration the application of Jones type standing only to possessory offenses. We are dealing here with a non-possessory offense. I think what the Court is suggesting in Brown is that the Jones type standing is no longer required in a non-possessory offense. Thank you Your Honor.
Warren E. Burger: Very well Mr. Mackay. Do you have anything further Mr. Weller?
G. Joseph Weller: Thank your Mr. Chief Justice and may it please the Court. Very frankly, I find this case remarkably simple. It seems to me that all we're talking about is that property concepts no longer apply to standing. Therefore, the legitimately on the premise rule is even more valid today that perhaps it was before.
Warren E. Burger: That leaves us then to decide whether premises and automobiles are to be equated, doesn't it?
G. Joseph Weller: That's right Your Honor, and I'm willing to concede that there is a diminished expectation of privacy in automobile. However, I think it's abundantly clear both logically and in this Court's opinion that the interior of an automobile is indeed a protected area.
Warren E. Burger: What if you could see, what if the officers could see the gun or whatever, is that a violation of privacy from the look at it?
G. Joseph Weller: Well, I think we should make a distinction between what would be a legal seizure or search because of course you have the plain view doctrine would allow -- would make the police officers conduct legal, but perhaps we should still grant standing of the person who's present in the automobile to contest whether or not that gun was in fact in plain view. One other comment also -- well, we make an example at this point. A number of examples were suggested --
Thurgood Marshall: No question since you're so hip on Jones. Is that like to hitchhiker?
G. Joseph Weller: I think that hitchhiker would probably -- would have standing, however we're not hitchhikers in this case, we're clearly not hitchhikers and also I wonder if --
Thurgood Marshall: But it would apply to hitchhiker?
G. Joseph Weller: Legitimately on the premises rule would apply to hitchhikers.
Potter Stewart: And robbers, how about --
G. Joseph Weller: It would not apply to someone who is --
Potter Stewart: -- steals a car and is driving it?
G. Joseph Weller: It would not apply to it --
Potter Stewart: He is in fact in possession and let's says he is on sole exclusively --
G. Joseph Weller: Not legitimately on the premise is with my answer.
Thurgood Marshall: But the hitchhiker would be?
G. Joseph Weller: Hitchhiker would be legitimately on the premises. However, I wonder -- I wonder if maybe that is really --
Thurgood Marshall: The hitchhiker has a right of privacy in somebody else's car which he is temporarily in.
G. Joseph Weller: I think that is true, but I wonder if that is really a serious problem.
Thurgood Marshall: Didn't it stretch something?
G. Joseph Weller: Well, if you're thinking can that situation come up very often because you would assume that this person that we're talking about is --
Thurgood Marshall: I've seen a whole lot of hitchhikers getting in cars.
G. Joseph Weller: Yes, but can they be incriminated by something found in that car unless they have some association with the car. So maybe, you're talking about a very isolated circumstance.
Thurgood Marshall: You mean hitchhikers are isolated?
G. Joseph Weller: No. So far as --
Thurgood Marshall: -- as many as 10 man in a group.
G. Joseph Weller: So far as raising this issue is concerned, of course there are many hitchhikers but I think it would be rare that a hitchhiker would be incriminated by something found in the car, and I also would hasten to add that they were not hitchhikers in this case.
Thurgood Marshall: Do you need this real case?
G. Joseph Weller: Pardon me Your Honor?
Thurgood Marshall: Do you need that Jones statement for your case?
G. Joseph Weller: Legitimately on the premises?
Thurgood Marshall: Yes sir.
G. Joseph Weller: It would certainly be helpful and I would not wish to discard it, but --
William H. Rehnquist: You have to go to direct that add forget about Jones don't you?
G. Joseph Weller: Well, if we conceive, there is no expectation of privacy. You'd have to go to direct that theory. Might I add on that point also that in the dissent by Mr. Justice Black in the Mancusi case, he suggested that perhaps it would be proper to combine legitimately on the premises and directed that. If that would be a test, I think it would be an extension of what the present test is, but if that's a test, we still meet that in this case.
William H. Rehnquist: Is that Mancusi was a building, not a car?
G. Joseph Weller: It was an office.
Lewis F. Powell, Jr.: That's the presence or absence of probable cause that make any difference in this type of situation?
G. Joseph Weller: Not as far as standing is concern because that's what we would like to contest.
Lewis F. Powell, Jr.: All right --
Potter Stewart: Well, that's the issue on the merits that's decided on this case.
G. Joseph Weller: That's correct Your Honor.
Lewis F. Powell, Jr.: All right, but let's assume for the moment there was probable cause to stop this automobile, would you still be making the same issue with respect to standing to conduct a sort of pat down search that was approved in Robinson?
G. Joseph Weller: It's a probable cause to stop the vehicle?
Lewis F. Powell, Jr.: Yes, would that have been permissible or would the individual who were patted down after the vehicle had been stopped with probable cause have standing to object?
G. Joseph Weller: I would think so because he first to have standing to challenge has being patted down, that's his person, and I think he also has standing to contest to stop. That's not saying that there's probable cause, you will lose or he may lose.
Potter Stewart: But if he conceives there is probable cause, he is not --
G. Joseph Weller: Well then --
Potter Stewart: -- going to object to it.
G. Joseph Weller: He's conceited the issue, it's not a standing question it's not just an issue.
John Paul Stevens: But the other side of the coin is if you assumed there is no probable cause, it still doesn't do your client any good if he has no standing. The search could be grossly illegal and he still has nothing to complain about.
G. Joseph Weller: That is true. I was just thinking what it would happen in the case of a husband and wife. One of whom is the registered owner of the car, we going to say that both would not have standing? Or that to me seems suggest rather absurd result. I don't think that --
Thurgood Marshall: Well that's not yet involved in that closed husband and wife law.
G. Joseph Weller: I have nothing further if there's no further question.
Warren E. Burger: Very well.
Lewis F. Powell, Jr.: May I ask you the question -- about your adversary. What about the driver of the stolen car?
G. Joseph Weller: I have no problem with that. I don't think the driver of a stolen car has standing.
Byron R. White: So you think that if I steal a car and I'm driving down the road and the policeman just stops the car without probable cause and searches it that I can object to it?
G. Joseph Weller: I would hate to argue that issue and I don't think that would be the case. It's legitimately on the premises again not legitimately on the premises. That's a simple enough rule and I think it's for practical reasons the car would be retained.
Byron R. White: Very strategic, very strategic.
Warren E. Burger: Thank you gentlemen. The case has been submitted.