Warren E. Burger: We will hear arguments next in Number 128, Diaz against Carter. Mr. Morehead, you may proceed.
John F. Morehead: Mr. Chief Justice and may it please the Court. My name is John Morehead, and I am here on behalf of the Democratic Party of the State of Texas. This case involves a constitutionality of political party filing fees as an absolute prerequisite to getting on the primary ballot. This is an appeal from a duly constituted three-judged Court. The Court below held that filing fees violate the First Amendment, the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. When used either as a revenue collecting device or when made an absolute requirement in order to get on the ballot. There were intervenors in this case who desired to vote for the candidates who did not have the filing fee. Judge Taylor writing for the three-judge Court decided that since the intervenors wanted to vote for these particular candidates that this was really a voter’s rights case, and that therefore, in order for the State to sustain its laws, we had to meet the burden of showing a compelling State interest. Our position is that the primary question before this Court, is whether or not the traditional rational relation test of the Fourteenth Amendment applies to this factual situation or whether or not the State must show a compelling State interest in order to sustain its laws. To begin with, let me say that I consider the issues involved in a nominating primary or political party, to be different from those issues which are involved in a general election. The reasoning of Mr. Justice Stewart in Turner against Fouche, I think that is the correct pronunciation, seems to me to indicate that a filing fee is an absolute prerequisite to stand for office in a general election would amount to invidious discrimination. The first question to be decided here today is whether or not the primary should be treated exactly like a general election. There is language in the 1944 case, Smith against Allwright with which Mr. Justice Marshall is very familiar, which indicates that the answer to my question is yes, and Smith, Mr. Justice Reed said, when primaries became a part of the machinery for choosing officials, State and National as they have here, the same test to determine the character of discrimination as a abridgment should be applied to the primary as are applied to the general election. The Court in Smith was talking about a State statute which fenced off the rights of otherwise qualified black voters to participate in the democratic primary. Since the decision of this Court in Smith, many cases have came before this Court which involved both voter rights and candidate rights. The issues and problems have been definitionally refined to the extent that I think that if Smith were to come before this Court today, I believe that this Court would probably, would obviously reach the same result, but would probably use a little bit different wording than it was used in Smith. I feel like that it would be much more similar to, for example the case of Kramer versus the Union Free School District. In order to get an accurate perspective of the issues in this case, a brief sketch of how Texas election systems work will be helpful to the Court. Primaries are held in May, and under the laws as it exists today, the payment of the fee is an absolute requirement to get on the ballot, no write-ins at all are permitted on the primary ballot. In November, the election is free, no fees are charged at all in the State of Texas.
Warren E. Burger: Who is eligible to vote on the primary election?
John F. Morehead: Everyone. You can only vote, and either there is a law which says you can only vote in a Democratic primary or in Republican primary, but all qualified voters are eligible to vote in a primary election.
Warren E. Burger: In one way or the other?
John F. Morehead: That is right.
Warren E. Burger: They do not have to show anything about their party affiliation.
John F. Morehead: No sir, they do not. At the top of the ballot is printed the words which say that I pledge to support the nominees, but of course no way that could ever be imposed. And also in our November election, we have a much, much easier method for independent candidates or independent parties to get on the ballot then the Court was faced with in the recent case of Jenness against Fortson, there, this Court held that 5% was alright. In Texas, it is 1% of the people for State wide election, and for local elections, it is also 1% except there is an absolute maximum, it cannot ever have to have more than 500 signatures in order to get on the November ballot. And so, as the Court is aware, this is a consolidated case involving three different candidates who desire to get on the election. The two local candidates, the one for County Judge in Fort Worth and the one for County Commissioner out in El Paso, both of which counties have populations in excess of 300,000 people only needed 500 people on a petition in order to get on the November ballot. We think that a primary --
Speaker: Excuse me. Any other substantial limitations or requirements with respect to the getting out of ballot by petition. Do the signers have to be people who have not voted in either primary for example?
John F. Morehead: No. You just get 1% of the people that want to support an independent candidate.
Speaker: And by 1% of the people, you mean 1% of the eligible voters?
John F. Morehead: 1% of eligible voters, not 1% of the people that voted in the last election, but 1% of the eligible voters. Now, the state thinks that a political primary is an extension of the right to vote, similar to which this Court was faced in the McDonald case involving the absentee ballot for the inmates of the Cook County prison. In a primary, you get to vote a second time, not only do you get to vote in November, but you also get an opportunity to vote in May. And we therefore submit that this is an extension as also you can see that a candidate gets the right to run twice. For example, Mary Lindsay lost in the Republican Primary for the Mayor of New York and was able to come back as an independent in November and still win the election. We submit that the footnote in Kramer by Mr. Chief Justice Warren, which points out the distinction between fencing off case as happened in Kramer, where the man was not eligible to vote at all, and the type of case that you have in McDonald, which is an extension of the voting rights is a distinction which this Court should apply in this case, and that the three-judge Court when they applied the rational relation test, I mean, when they applied the compelling State interest test to the laws of the State of Texas, just simply used the wrong test and that therefore, if it were not for the press of the fact that we have new primaries coming up in 1972 and new deadlines to meet that the proper disposition of this case is really a remand to the three-judge Court to apply the proper test to the Texas laws. We submit of course that the rational relation test is the one which this Court should use. Now, even applying a rational relation test, we are still faced with the problem of does this filing fee as an absolute requirement to get on a primary ballot, which is a part of the election process constitute invidious discrimination. If the rational relation test applies, then we submit that the Court could look, should look to the other side of the question, and what purposes does the fee serve. The fee serves two purposes to the State of Texas. First, it serves the purpose of regulating the ballot and secondly, it serves the purpose of financing the actual cost of the election itself. In other words, the candidates pay all the cost of printing of the ballots, paying the voting officials, all of the other incidental things, renting a place for use of the public schools, most of the time to hold the elections in, getting the pencils, renting the voting machines from the county and all of these matters. This is taxed to the candidates, and not to the states. On the face of this, both of these reasons would appear legitimate, but we still must look to the question of whether they have the effect of classifying an effectually excluding from the electoral process, people who are unable to pay for the fee.
Speaker: Mr. Morehead, why would you not do that on a general election too?
John F. Morehead: I am sorry, I do not understand the question.
Speaker: Why would you not split the cost of the general election among the candidates who are on the ballot of the general election?
John F. Morehead: To me, inherent in our constitution, both the United States Constitution and the State Constitution, we have an elective process, that is the way we select. Our public officials is through election. The ultimate election since that is the way we are going to run our Government; it seems to me must be borne, the cost of that must be borne by the state. And that someone who is unable to pay the fee there Mr. Justice, obviously must have the opportunity to stand for ultimate election, and it might be a legitimate purpose to have finance it that way, but you certainly could not exclude someone from a general election in November because of his inability to pay this fee.
Speaker: All I am saying is, is not your argument equally applicable to the primary? How do you differentiate to the primary and the general election? When you argue this way and in addition you say that the primary is an extension of the general.
John F. Morehead: Well, it seems to me that, first we need to look historically at the problem of the primaries. Primaries worked there when we first started holding elections in this country and as I understand it, some states still nominate through, through convention as opposed to through primary, and the fact that someone is unable to get on the ballot in the primary election, does not necessarily mean that he cannot get elected, whereas if he is unable to get on the ballot in November, the door is closed, he is foreclosed of any possibility for election. Does that respond sir? That is the response I have.
Speaker: Well, that is the only one I can think of too.
John F. Morehead: I have been thinking on the problem instead of the attack.
Warren E. Burger: If the costs were a great concern, I suppose the cost of the general election is substantially more than the cost of the primary in terms of?
John F. Morehead: In terms of total cost, it is not sir. The reason being that in Texas we hold two primary elections, and only one general election and therefore you got to have two sets of officials, and if you are going to hold them in different places, and two sets of ballot boxes for example or two sets of voting machines, where as in the general election, you do not have to hold one of these. One of the problems which I think needs to be considered if the rational relation test does apply, what are the alternatives?
Speaker: What was the District Court’s excuse for applying a more strict test, that it is the base it is holding on the first Amendment?
John F. Morehead: Yes sir.
Speaker: Do you challenge the holding that the First Amendment is relevant, it protects the right to run for a State office?
John F. Morehead: Not the ultimate right to run, no sir, I do not think. I mean, I do think the First Amendment does protect the ultimate right to run for a State office.
Speaker: Are there cases like that here?
John F. Morehead: Not that I have seen, but it does an abstract proposition. I would think that that the Privileges and Immunities Clause would get the First Amendment back in and apply into the states on that, I am saying that correctly. What the three-judge Court based their reasoning on sir, was this, they said --
Speaker: Well, I did not understand that, if I understand what it is, if they tell you about the First Amendment, was it not.
John F. Morehead: Right, they said that this was a voter right question, since voters wanted to vote for a particular candidate that therefore this was a voter question and not a candidate question, and that therefore the right to speak as vote.
Speaker: Well, the right to vote on state election protected by the First Amendment?
John F. Morehead: I would have thought that it probably was.
Speaker: The Federal right to vote under the First Amendment in State election?
John F. Morehead: I just have to be frank and say that I do not know the answer to that question. On the first question, I would think so, but I must plead ignorance to that. If we want to find this another way to regulate the size of our primary ballot other than fees, we are reduced ultimately I think to a petition which to me, in other words you have to show some sort of modicrum of support in order to get on the primary ballot because otherwise, you face the very real problem of 500 people filing for the office of Governor of the State of Texas, that it is not quite the same problem as Mr. Justice Black said in Williams against Rhodes, there he talked about the theoretical possibility of the proliferation, if I can get all those words, either political parties and I think that the theoretical possibility of proliferation of candidates is a much more real problem than the possibility of having a whole lot of political parties.
Potter Stewart: Other States handled this problem without requiring the strong and large fees, do they not?
John F. Morehead: Yes sir, they do.
Potter Stewart: By requiring a certain number of signatures on a petition or by --
John F. Morehead: Some do it by petition, others have just not ever met the problem. The most serious situation I think arose in the State of Michigan one time where they did end up with 700 people on a primary ballot.
Potter Stewart: These fees can go up to close to $9,000.
John F. Morehead: Yes sir, it certainly can. It is expensive to hold an election.
Potter Stewart: This is just for county office, $9,000 fee to --
John F. Morehead: Well, for the District Judge's office which is a county office in the larger Metropolitan areas.
Potter Stewart: And, I notice the Statute 1308(1) says that the cost of the election are to be apportioned by, what is this, the committee or the chairman?
John F. Morehead: Yes, it is the county committee.
Potter Stewart: Yes, and that is the county party committee, the Democratic Committee or the Republican Committee?
John F. Morehead: Yes, the particular party committee.
Potter Stewart: The committee shall apportion such cost in such manner as in their judgment it is just an inequitable among the various candidates for nomination for District County in precinct offices as here and after defining the zone. And in making the assessment upon any candidate, the committee shall give due consideration to the importance, the emolument and term of office for which the nomination is to be made. Are there any rules, some developed as to the amount of these fees or each year does the committee use them?
John F. Morehead: Each year they set them on their own original basis and this particular case, this $9,000 fee to file for District Judge, what they do is try to collect enough money to pay for the election and after it is over, they rebate the excess proportionately depending on what fee you pay. In this particular case, they rebated 57%. In other words, if you look at it from the bottom up, they invested more than 100% on the amount that and there I think that if a candidate come in to the State Court and said that this particular County Chairman or this particular County Committee abused their discretion and the amount of this fee they set, I think you have got some redress in the Court of the State of Texas in that matter.
Potter Stewart: Ultimately they just paid for the actual cost.
John F. Morehead: That is right, ultimately they just paid for the actual cost, and ultimately all of them divided on the amount of payment.
Warren E. Burger: When you are up against the filing date, you do not really know whether you are going to get a refund, so you have got to put up $9,000.
John F. Morehead: That is correct sir. They always try to get more because for a losing candidate they have particular amount of trouble collecting money from him.
Speaker: How many candidates were there for District Judge?
John F. Morehead: A better way to ask that would be how many were unopposed, and in Tarrant County I think there are eight. The people from Tarrant County can answer that question. I think all, but one of them was actually unopposed in the democratic primary.
Speaker: With each unopposed?
John F. Morehead: Two.
Speaker: Had still to oppose, 9,000.
John F. Morehead: Yes. The unopposed candidates.
Speaker: What is the salary of the District Judge?
John F. Morehead: The District Judge’s salary would be about, there is two different ways you pay for it, one, the State pays a basic amount which is now 21,000 and many counties vote an additional emolument, most of them rounding up to about 25,000.
Speaker: What is the term?
John F. Morehead: The term is four years.
Speaker: Did the fees ever exceed the salary of the officer, any officer?
John F. Morehead: I think there is one example of that where there is a County, where there was a $50 fee and he do not get paid any dime. But that is the basic fee that each person has to pay $50 filling fee and then later on after you find out how many contested races you have and how many candidates you have, then after the filing deadline is when there is additional assessment is leveled.
Warren E. Burger: Do you suppose the filing fee had something to do with the fact that seven or eight of the Judges were not opposed?
John F. Morehead: Yes sir, I do.
Warren E. Burger: Is there a fee used if one runs for statewide office?
John F. Morehead: Yes sir, but these fees are different. The legislator or is the one that passes these laws, and so therefore, the cost to run for a statewide office somehow seems to be less than it does to run for the others and the counsel for Mr. Pate (ph) have said that this is a discrimination in itself. They charge $150 to run for the State Legislator, $1,000 to run for Governor, that is the maximum for statewide office --
Potter Stewart: Not to the State.
John F. Morehead: Not to the state.
Potter Stewart: Is there any accounting required by the party to the state?
John F. Morehead: Yes. To the Secretary of State, yes sir.
Potter Stewart: Public accounting.
John F. Morehead: Right.
Potter Stewart: The receipts and expenditures.
John F. Morehead: Right. The other alternative that I would like to pose before I sit down is, if the candidates do not finance these party primaries, who must finance it? The other alternative is that of course, you need to make the counties and State itself finance these particular elections. And to say that the States must themselves finance it, and that that is part of Equal Protection under the Fourteenth Amendment, is quite a different thing as saying that the legislator can finance it itself, if it so desires. In other words, to say that the State must finance it, is to say that somewhere in the Equal Protection clause, there is some sort of affirmative language which says that the state must act, that the state must hold this primary election and finance it themselves. Because I think that ultimately that whether it is $50 filing fee or $0.05 filing fee or $9,000 filing fee, that the filing fee itself, because you are always going to run into that one person or that group of people that the $50 is just as important to as or the $5 would be just as important or as Mr. Justice Douglas said in Harper that, that the $1.75 on Virginia, poll tax does not really have any valid relation to the man’s ability and right and qualifications to stand for all this or to vote for that particular matter.
Speaker: Do you understand Mr. Morehead that the District Court held that these -- first of all that these fees are unconstitutional only as applied to people who could not afford to pay them.
John F. Morehead: No sir. In their opinion, the Court said that it is unconstitutional on two respects. Number one, it cannot be used, they used the word revenue raising device. It is not a revenue-raising device in the sense that it goes into the state conference like the school, the poll tax is used just to pay the cost.
Speaker: Is to pay the cost.
John F. Morehead: If they said you could not use filing fees to pay the cost of the election and number two, they said it could not be made an absolute requirement to get on the ballot.
Speaker: Well, by the use of the word absolute, do you think they apply that a person who could afford this fee could be required to pay it. But somebody who filed an affidavit of indigency, could not pay.
John F. Morehead: I read it that way, yes. But, on the other hand, when you see the requirement that our state legislator put on the affidavit of indigency in their last legislation, that is obviously got to be bad, I mean that --
Speaker: Mr. Morehead, I have typically with your answer to Mr. Justice Stewart that you said to Mr. Justice White earlier, the concluding paragraph of the opinion, seems to rest this squarely on First Amendment grounds without reference to an Equal Protection or other basis for the decision, am I wrong about that?
John F. Morehead: I always had reference sir to looking at, I am looking at the jurisdictional statement, which is where the opinion is printed at the page 10A in the back. The top sentence, the Court. Now he says, in the second sentence, we have limited our decision here to say that a filing fee violates the First Amendment and the Due Process Clause, and the Equal Protection Clause of the Fourteenth Amendment when it is used as a revenue collecting device, that is what I thought the Court really held.
Speaker: This last paragraph, it says in granting declaratory relief, is there a difference? Certainly, the last paragraph, the rest of that, was not squarely on the First Amendment?
John F. Morehead: Yes sir, and squarely on the voting rights problem as opposed to the candidate right problem.
Speaker: And it is rested on page 10a on the First Amendment and Equal Protection, it does not help very much that the Equal Protection is also added if payment of a fee violates the First Amendment, does that make any difference between --.
John F. Morehead: That is correct, I see, if we have a First Amendment problem and a compelling state interest problem, then these statutes ultimately must fall, I think that is the really proper --
Speaker: You do not know of any cases where the First Amendment has been applied to guarantee someone except this one relates to that in the state in an election for state office.
John F. Morehead: No sir, I do not. I will research this problem and --
Speaker: You understand then that the Court is holding at least its reasoning in its final paragraph of its opinion would hold unconstitutional, any file fees of any kind, the $10 fee.
John F. Morehead: $0.10 fee,that is the way I read it.
Potter Stewart: And required of anybody, no matter if you are a multi millionaire candidate.
John F. Morehead: That is right. That is what I really ultimately -- I did not think that, that is what they are really resting it on since they had set it back at first and it is just a guess there to answer that question. Thank you very much.
Warren E. Burger: Thank you Mr. Moorhead. Now, is Mr. Bailey going to be in rebuttal?
Pat Bailey: Yes.
Warren E. Burger: Very well. And you Mr. Crouch?
A. L. Crouch: Yes.
Warren E. Burger: Mr. Crouch, you have 20 minutes.
A. L. Crouch: Mr. Chief Justice, may it please the Court. I would like to point out that the background of the filling fee is that it was designed along with the Poll Tax to exclude blacks from the party primaries in Texas. The Poll Tax was adopted into the State Constitution in 1902, and the filling fee was adopted by the legislature in 1911. In United States versus Texas, Judge Thornberry said that one of the main purposes of the Poll tax was to disenfranchise the Negro voter, and we maintain that the purpose of the filling fee was to finance these five primaries, which have been to the Supreme Court of the United States five different times. Now, the very fact that words indicating race are not mentioned in the statute does not mean that race can not be a picture because the very act of adopting an economic status standard for a person who seeks elective office is automatically placing a race standard in effect.
Speaker: Are you arguing a different basis for sustaining the judges below that the Court used?
A. L. Crouch: No Your Honor.
Speaker: I am not saying you should not do that, but I just wondered if.
A. L. Crouch: I pointed out in my brief that the filling fees stand to keep indigents from filling.
Speaker: Now, this is an Equal Protection argument.
A. L. Crouch: Yes. But it also -- when you talk about indigents, you are talking more about minority parties than you are whites, and you are talking more about women than you are men. I have some tables in my brief to illustrate that. Now, in Texas in addition to the blacks, we have the browns, and Mr. Morehead pointed out that it is fairly easy to get on the election ballot in the general election as a write-in candidate. Well, in the brief filed from El Paso, there is a table over in the back showing write-in candidates in the November 1970, general election, the last page 86, and there were 398 write-in votes. So that is an exercise in futility to attempt to get on the general election ballot as a write-in candidate.
Speaker: Well, I think Mr. Morehead was not talking about the write-in vote to the general election, but getting a name on the ballot at the general election by nominating petition of 1%.
A. L. Crouch: This is a third party, and a group attempted that last year called Latassa Univa (ph) and the Supreme Court of Texas turned them down over technicality.
Speaker: What was the technicality, what do you mean?
A. L. Crouch: Yes.
Speaker: What was the technicality, that they had less than 1%?
A. L. Crouch: No. They apparently had enough percentages in at least one or two counties. They were trying to get on in five counties as I remember correctly. There was a dissenting opinion which indicated that this group was acting in good faith, but they had the conflicting opinions of what statute meant from two to three different state officials, and nobody understood what the statute was and so they were not allowed on the ballot.
Speaker: But in any event that Mr. Morehead was not talking about write-in votes at the general election, but talking about a man's ability or as you say inability to get his name on the ballot at the general election so --
A. L. Crouch: Right, in the third party column, alright. Now bringing that down to county level, he mentioned the figure 500 signatures as a maximum, that is true. But since, this case has been decided, the legislature of Texas has done a remarkable plastic surgery job on the face of the statute. They have enacted what is called House Bill Five and I am not sure when the bandages come off, but I think January the 1st. Now, in that particular House Bill Five, the requirement to get on as a write-in candidate is 10% of the people who voted for governor in your party at the last general election, which in Tarrant County would be 6,211 signatures and they have to be sworn too before a notary, and the notary in Texas is entitled to a $0.50 statutory fee which would mean over $3,000 just a notary fees to get the signatures. Now that is not $500 which is all that requires to get on as a third party candidate. But over 6000 to get into the democratic primary as a write-in candidate, and in addition to that, you have to sign and swear to your popazao and humiliate and degrade yourself by helping to establish and perpetuate a cash system. I do not see any need for that, but there it is.
Speaker: There is a legislation, so conditional legislation enacted by the state legislature which comes into effect depending upon the result of this.
A. L. Crouch: Yes, Your Honor.
Speaker: Decision by this Court.
A. L. Crouch: Yes.
Speaker: Is that set out in full somewhere, I saw you, no reference.
A. L. Crouch: Yes, the test does not exhibit in the State’s brief.
Speaker: In the State’s brief?
A. L. Crouch: Yes.
Speaker: Thank you.
A. L. Crouch: Now, it is also a temporary measure that expires at the end of 1972, so nobody really knows what it means. Now, with the reference to Mr. Morehead’s statement about two sets of voting officials, the secretary of State himself who is a Chief Election officer for the State of Texas has recommended in a message to the last legislature that a unitary primary system be established and that it be paid for out of tax bonds by the County and by the State and so we would eliminate some of the cost of having the duplicating primaries, if that recommendation is followed. Now, I maintain and I have all throughout that the filling fee is a Poll Tax imposed on a citizen who wants to run for office and vote for himself. Now in Texas, you have what is called a cost deposit of $50 for a person who wants to run for County office. He pays that at the same time that he files his application to run. Then, after the Executive Committee has had a chance to meet and make the party assessments, at that time, he has to add up additional sums of money running up in several thousand dollars. This last year in Tarrant County, the filling fee assessed by the executive committee of the party was 32% of the annual salary which is a very large sum of money, and as Mr. Morehead pointed out, of the 25 Tarrant County officials on the primary ballot in the democratic primary last year, only two of them had opponents because of these high filling fees. And of the total of over $200,000 received by the Chairman of Tarrant County democratic party in 1970, 77% of that money came from the incomes themselves. There was nobody else who could afford to pay and it is outside of the record but of course, many of them found difficulty in paying it to.
Speaker: Do you understand the holding of the District Court in this case to have been -- that these fees are unconstitutional only as applied to those who cannot afford to pay them?
A. L. Crouch: I think not, I think they are unconstitutional to everybody, even as the poll tax is unconstitutional to everybody, and with reference to the poll tax once more, I would like to remind the Court of Harman versus Forssenius in that case it was the Virginia case, the Twenty-Fourth Amendment had been adopted outlawing the poll tax in Federal Elections, in the State of Virginia to get around this ruling fairly passed a statute that made it possible for anybody who wanted to avoid the payment of poll tax to file an affidavit instead, and the affidavit testified that the person had been a resident for so many months and that he intended to remain a resident throughout until the election was over. But you see in our case, we have Harman versus Forssenius all over again except instead of one affidavit we have to file 6,100 affidavits and I think that 6,100 times is as bad as Harman versus Forssenius of course, prejudice did not matter. Of course I have represented these people who just flat have not been able to pay the filling fees that have been demanded.
Speaker: Well, so your clients, you just as I understood here, our people cannot afford to pay it.
A. L. Crouch: That is right! And it was so stipulated by the other side.
Speaker: And the --
A. L. Crouch: There were three different plaintiffs in the case.
Speaker: And all applies in this case.
A. L. Crouch: Right.
Speaker: At least three consolidated cases were people who alleged that they could not afford to pay the fees. Is that correct?
A. L. Crouch: That is right. Two of them were lawsuits incidentally.
Speaker: I wondered, how you understood the Court’s decision just that the fees are unconstitutional only as applied to those in your client’s position?
A. L. Crouch: No sir, it is applied to all.
Speaker: It is applied to everybody.
A. L. Crouch: That is my understanding. Yes.
Speaker: Do you further understand that the Court to have held that all fees would be unconstitutional even on $1 fee?
A. L. Crouch: Well, there is the question of the low and narrow fee, there is some sort of hesitation on the part of Judge Thornberry, if I remember correctly and he was concern about Wetherington case over in Florida, which held that reasonable filling fees maybe constitutional.
Speaker: Right.
A. L. Crouch: And I think he was trying to take that really into account when he said possibly a low and narrow fee might be constitutional, he did not say it was.
Speaker: He is in the right opinion did he?
A. L. Crouch: Sir he wrote conquering opinion.
Speaker: But the Court's opinion does not talk about that, does it?
A. L. Crouch: No sir and the Court asked a while ago about was there any First Amendment case other than ours and the Duncantell case which was decided in Houston on October the 27th, specifically says that the right to run for elective office is inextricably woven into the fabric of the First Amendment and one of my co-counsel here has pointed out to me that Williams v. Rhodes also was decided on the basis of the First Amendment. But it would seem to me that the First Amendment is much more important in this particular part.
Speaker: (Inaudible) talk about the right to associate.
A. L. Crouch: Right.
Speaker: But they did not have the right to vote.
A. L. Crouch: Well, the right to associate is a part of the First Amendment.
Speaker: Right, it is definitely, I know that this is page 161 of the record, the judgment of the three-judge court makes it explicit that the section is declared unconstitutional and that is enforcement enjoined, I gather it is everybody and that the declaration of unconstitutionality is rested only on because they had infringed upon First Amendment Rights without any compelling justification and violation to the First and the Fourth Amendments. Is that right?
A. L. Crouch: Yes sir.
Speaker: So I gather at least on the face of the judgment that was over here, it rested on the First Amendment, right?
A. L. Crouch: Yes sir.
Speaker: And secondly, it has enjoins its enforcement as to everybody, not merely as to your impecunious crime.
A. L. Crouch: That is right, the whole state of Texas and the political parties are all enjoined. Now with reference to the standard to be employed, as I understand it, there are three different standards that can be employed, the first is whether or not the articulated state goal can be accomplished in some less drastic means than the one employed by the state. And under Crammer, that question needs to be answered first before you go into the question of whether you apply the compelling justification test or the rational interest test. And I take the position that there is another less drastic way of regulating the ballot in nominating petitions and there are 34 offices included on the Tarrant County ballot in 1970 which is given in one of the exhibits in my brief and 21 of those offices could come off the ballot if we have legislation permitting single member legislative districts and single member judicial districts for Tarrant County. That trouble with the nominating petition I think would be a less drastic means than a filling fee to regulate the ballot. But coming back to Harper, Harper plainly says that any fee is per se unconstitutional because it is irrelevant, the man's economic status has no relevancy whatsoever to his qualifications as a voter and Mr. Morehead pointed out the case from Georgia, the Turner versus Fouche case, he mistakenly said that that involved a filling fee when actually it did not, it required an ownership of real property. But I think that the ownership of real property is equivalent to the ownership of personal property except in Texas, the state takes the personal property and the state of Georgia allows the man to keep his one square inch of real property. Shelton versus Tucker, the breadth of legislative abridgment must be reviewed in the light of less drastic means for achieving the same basic purpose. Williams versus Illinois, Mr. Justice Harlan in a separate opinion conquering the matrix of recent Equal Protection Analysis is that the rule of statutory classifications which either are based upon certain suspect criteria or affect fundamental right will be held to the Equal Protection unless justified by a compelling government entries citing Sheparo, Harper and Williams and in this case, we not only have the fundamental constitutional right to run for elective office, but it is concomitant, the fundamental constitutional right to vote for the candidate who wants to run and in addition to those two fundamental constitutional rights which were involved, we have also this suspect legislative criterion of poverty. We have the filling fee limits the place on the ballot to the man with money and this means that his economic status has become a qualification for office and all of the three offices involved here are offices for the qualifications are set by the constitution of the state, and it is beyond the power of the state legislature to amend the constitution of the state and pass additional requirements. And economic status is absolutely irrelevant, the Edward’s case held this. Recently the Graham case has held it, and in the Graham case, as fas as I remember the case correctly, there was a case involving aliens and the Court said that an alien had this right, regardless of his nationality to welfare benefits and it was very important that he should have it and in our case, we are not representing aliens, we are representing American citizens and American citizens who are not asking for a handout, they are not asking to go on the welfare roles. They do not have any money but they are asking for a job. They are asking for a right to be considered for elective office, which under Turner versus Fouche, I think they have a basic fundamental right to be considered for elective office without these other qualifications, which are absolutely unconstitutional.
Speaker: I noticed in Judge Thornberry's concurring opinion that he says one of the things voters are deprived of the opportunity to have their candidate considered for the democratic party nomination, if he cannot pose a filling fee and he goes on, since in the overwhelming majority of Texas political offices, nomination by the Democratic Party is tantamount to election. It is clearly the restriction on entry into the primary may significantly impair the right to cast on his vote effectively and so on, and they are precluded by the high filing fee from associating within the established party.
A. L. Crouch: That is right.
Speaker: Does this imply that this law is only applicable to the Democratic Party and not to the Republican Party?
A. L. Crouch: No sir, the opinion there says that the political parties plural of the state are enjoined, but let me point that in my candidate’s particular race, there were no republican candidates stalled. If I remember correctly, there were only the candidates in Tarrant County, Texas only filled candidates in four races, four County races out of 30 somewhat.
Speaker: That is for Republican Party did it.
A. L. Crouch: That is right.
Speaker: Do they hold a primary or do they do it by convention?
A. L. Crouch: Well, they hold on if a party get a certain number of votes in the November election, they have to hold a primary. But the Republican Party is not able to collect these filling fees because their nomination really is not worth in all full lot and they have to use volunteers help at the post, whereas the workers in the democratic primaries are paid $2 an hour out of the filling fees.
Speaker: So the republican parties does not require these fees.
A. L. Crouch: Yes, they have fees but quite frequently, they return the fees and do not use them. But mostly, they try to use volunteer help and quite frequently, they do not use the voting machine because the paper ballots are cheaper. There is a newspaper clipping from the Dallas Morning News in El Paso brief which I would like to refer the Court to explaining the problems with reference to Republican Party. But if the Secretary of State's recommendation --
Thurgood Marshall: Mr. Crouch, is not there too much trouble did he?
A. L. Crouch: Pardon?
Thurgood Marshall: Senator Carvell (ph) did not have too much trouble, did he?
A. L. Crouch: Well, no this was statewide race. The republicans are able to win statewide --
Thurgood Marshall: There is only one party down there.
A. L. Crouch: Except in statewide races. But if the filing fees go out and the recommendations of the Secretary of State are followed by the legislature and we have a unitary primary, then we will have greater participation on part of all, because everybody will go to the same place to vote just as in November. The Republicans will go to this machine over here and the Democrats over here, and they will all be paid for out of tax funds.
Speaker: And this will be done if what?
A. L. Crouch: If the recommendations of the secretary of state who is here to decide this lawsuit are carried out.
Warren E. Burger: Is that in the form of a bill now before the legislature?
A. L. Crouch: It was a message, special message and it has included as an exhibit in the El Paso brief, and we hardly concur with this recommendations.
Speaker: Mr. Crouch, I am a little confused, is there any division of opinion among the state office holders of Texas on this suit?
A. L. Crouch: Well, certainly.
Speaker: Some are on one side. Some are on the other, are they not?
A. L. Crouch: Well, nobody has intervened on our side. To be perfectly frank about it, it is not politically expedient for an office holder to become involved in a controversy of this nature. He loses votes no matter what he does. It is a hot potato, and you will find that they are not here, unless they have been sued.
Warren E. Burger: Now Mr. Crouch, your time is up.
A. L. Crouch: Thank you sir.
Warren E. Burger: Mr. John.
John F. Morehead: Mr. Chief Justice, members of the Court, I believe that broadly stated the issue here is whether there should be the opportunity for equal participation in the electoral process by candidates, with or without money?
Warren E. Burger: Go ahead counsel, situation is under control.
John F. Morehead: I will restate it, I believe broadly that the issue here is whether there should be the opportunity for equal participation in the electoral process by candidates.
Speaker: Can they suspend it for a moment?
John F. Morehead: No. Should I continue or wait?
Speaker: Well, hey! Listen back there, (Inaudible).
Warren E. Burger: (Inaudible), counsel you may resume your argument.
John F. Morehead: Alright. Broadly stated Your Honors, I believe the issue here is whether there should be the opportunity for equal participation in the electoral process by candidates with or without money or who refuse to pay. I do not believe that, and I do not fully concur with the opinion of the lower court. I think that opinion is too reserved and too conservative in our political way of life, in our democratic political way of life.
Warren E. Burger: Well, did not all counsel up to now make it clear that it applies to everyone, whether he can afford to pay or not?
John F. Morehead: The reason --
Warren E. Burger: No one can be required to pay a fee?
John F. Morehead: Well, the reasoning, Mr. Chief Justices, what I disagree with and that it limited only on First Amendment rights, what I am saying. My position is that the right to run to office is as much a fundamental right as the right to vote, under the First Amendment of the United States constitution which guarantees political association and that that right should not be impinged upon. That is my position and I think that if that is followed, it would eliminate exactly what is happening in Texas under this system, and that is a monopoly in government itself is what exists down there. There is a monopoly because it is a government by the selected, for the selected and now the selected. And I submit to the Court that the crux of the issue is whether the classification here which limits the right to vote or seek public office as a candidate is per se unconstitutional under the First Amendment which is the rights of freedom of political association and Equal Protection. The candidate, I am speaking for the voter’s rights as well as of candidate’s rights. This was, like in Rhodes, there, there was discrimination between parties and in that case, as Justice White inquired, is there a case from this Court that talks about First Amendment rights in connection with the right to run to office, and it did. That is the case where they talked about First Amendment rights as a right to run to office. I agree that the Equal Protection Clause of the Fourteenth Amendment permits the states to make classifications and it does not require them to treat them uniformly. Nevertheless, it bans any invidious discrimination and that is exactly what is involved in this case, invidious discrimination, unfair discrimination. The primary election is an organ of the state and as stated in that case by in Allwright case, when primaries become a part of the machinery for choosing official state and national as they have here, the same task to determine the character of discrimination to be applied to the primaries as they are applied to the general election. The general election, Your Honors and Mr. Chief Justice merely confirm the discrimination that exists in the primaries. And the alternate about petitions for independent is not a reality in the political life. In fact, in checking that section of the law, those people that voted in the primary cannot sign those petitions for candidates, non-partisan candidates that run in the general election.
Speaker: I understood Mr. Morehead to--
John F. Morehead: Make the opposite statement.
Speaker: (Inaudible) differently.
John F. Morehead: Differently, but we have checked and I was prepared for this and if you will check it, I believe I am correct.
Speaker: Do you have the statutory statement?
John F. Morehead: I do not have it with me, I have is 1305, I believe 13.50, so this is not like Georgia and Portison (ph), Justice Stewart where the election process was wide open. This is freezing in the status quo, the ins are ins and the outs are out. And that is why there is no opposition, and this country is based on the political fluidity I believe they say in the electoral process as what this Court is very concerned with, that it is maintained and that is just what this filing fee system prevents.
Speaker: First, we go back to this country's beginnings, races. In the early days many of the states required people to own property before they were eligible to vote even much lesser on for office.
John F. Morehead: Correct, and those concepts of course eroded. Just like Snowden versus Hughes, there is no longer the law in this Court, in the incorporation theory from the First Amendment into the Fourteenth Amendment, and that is why I say Snowden is not the controller in this case, what so ever. It is totally inapplicable to the fact situation and onto the brought principles of law that I have believed should apply to deciding this case.
Speaker: B21.
John F. Morehead: It would be truly a representative democratic type of government. These fundamental rights are involved here both under the First and Fourteenth Amendments. We say there is invidious discrimination, we say there is First Amendment rights violated, the right of political association from the voter's standpoint and from the candidate's standpoint and we also say that the classification is in that nature or neighborhood or criterion which is suspect money. It does not even say, wealth or property, it says money, cash, and when that is involved, when that is involved then they must, this Court must under its test give it a careful, scrutinizing examination and the state must show a necessary compelling interest for having such classification. I do not think they -- and I think they say in their brief; if that is true, the ball game is over. I say the ball game is over and it is time to change. And just briefly interjecting House Bill 5 in here which was not an issue. I am going to ask this Court if it will to, when it makes if and when makes its decision, to make it so broad if it is in favor of the appellees that we would not have to be coming up to this Court time and time and again for relief, like was done when they were trying to keep the black people from running in the democratic parties where five separate suits, one right after the other had to be brought because Texas does not give up that easy. I submit to the Court that this is a suspect classification that compelling interest test applies, I further submit that the excuses and reasons that they give for this legislation are wholly irrelevant to the achievement of the state's objective. That is of keeping the -- they say chaos will result. They say the ballot would be cluttered with a lot of non-serious and spurious candidates. That is speculative, that is remote, the other states have worked that out and the state can do it the same way. How? By a modicum of support petitions and not to couple it with alternatives, if one can pay, one candidate can pay a fee and the other one can get a petition to show modicum of support. That is again violating the Equal Protection Clause in the Fourteenth Amendment. So I respectfully submit to the Court that if we are to envision the true concept of government, of the people by and for the people that the opinion of the lower court be broadened, affirmed but broadened on the First Amendment rights and the Equal Protection rights. That is as to candidates, they have a right under the First Amendment to run for office. As long as they possess all other qualifications and there is shown a modicum of support for them. I believe that is all I have to say.
Warren E. Burger: Very well, thank you. Mr. Bailey?
Pat Bailey: Mr. Chief Justice, and may it please the Court. I would like to say initially for rebuttal. I will comment one statement made in one of the briefs filed by the appellees. Statement says, Texas you finance your great university, your school, your tremendous highway system, why do you fight the financing of the most essential duty of government, when you know that, the primary elections in the most part are tantamount to election. I think that this is one of the issues that comes up in this case because what in affect the trial court, the three-judge court below has done, is to completely do away with the financing system in Texas that we have for all of our election process with the exception of the general election. They have an effect said, Texas can raise a revenue or can take care of it in some source. But really what in effect the Court has done, is say that the State of Texas are some lesser political sub-division of the state, well now, I have to take over this function that the political parties that wish to submit nominees for election on the general ballot are now doing, is in fact forcing the state to extend moneys, to allocate their limited tax funds or the local tax and bodies limited to another project which I think as you can see by the statements to pay are rather expensive at times. Now, this case really started out. I think we kind of -- it is kind of moved around and jumbled around a little bit to work really hard to see what we really have. It really started out with some particular candidates who did not have, but they have got adequate funds to pay the filing fees, challenging the heights of these. During the course of this case, certain voters intervened that said that I would like to vote for a particular one of these candidates and actually what the court finally decided this case on was not the rights of the candidates here, is to whether or not, they had a right to be on about without paying some sort of filing fee. What they said is that you have infringed upon some voting right of the voters. Now, I think what you did here is, that when we start talking about the voting right principles, we start talking about compelling interest and this is again the court said that there is no compelling interest for the state to have allowed this type of situation in this particular case. Well, I submit in this connection that possibly the court has used the wrong path in this case, they have used one of this voting principle cases, to decide whether these fees, was there any compelling answers to the state for these filing fees.
Thurgood Marshall: Mr. Bailey, could they charge for running in the general election?
Pat Bailey: They do not, Your Honor.
Thurgood Marshall: I said could the State of Texas constitutionally do it?
Pat Bailey: I think that Your Honor, you would have a bigger problem, or would have one. If you just made a charge and I think this maybe is tied in with what the court below said. They said that having a filing-fee to pay --
Thurgood Marshall: But if they use exact same filing fee in the general election, would that be constitutionally permissible?
Pat Bailey: I do not know Your Honor that I think -- well, I will go back to this. I think it possibly, maybe it would. I think that one that was based on cost of the election process would certainly be in a better situation than one as the court below mentioned. They said a small or reasonable, they talked about a reasonable type of filing fee. As if some lower filing fee would be constitutionally acceptable. They said it would be permissible. It would be illegitimate possibly even compelling function of the state. But I think what happens here is --
Thurgood Marshall: But is your answer that it might be.
Pat Bailey: I think that if you put some type of filing fee on the, the ultimate general, on the general election.
Thurgood Marshall: The same fee as in this case?
Pat Bailey: I think you might have some constitutional questions there Your Honor but I think that --
Thurgood Marshall: Well, do not you have the same constitutional questions here?
Pat Bailey: No Your Honor.
Thurgood Marshall: Where the primary is “an intrical part” of the election machine near the State of Texas.
Pat Bailey: Yes sir, but in another part of this intrical machinery is a fact that a candidate, if he wants to be only ballot, the general election, there is a process for getting only, will not cost him this filing fee. I granted, it is not a --
Thurgood Marshall: But will it not cost him something?
Pat Bailey: No sir, it will not.
Thurgood Marshall: Well, will it not cost him to pay for the petition?
Pat Bailey: I presume, it would cost him this and possibly the stamp or some of the other expenses in this nature Your Honor. But I think that when we start talking, as the court below, they added some other type fee other than this high one would be acceptable. To me, this is incorrect, because I think is what more compelling are reasonable reason could the state have and to say we are going to set these filing fees to where they will cover the cost of the election. I think that to say it could be some other lower fee that had no basis of this nature then it would not be possibly either reasonable or compelling.
Thurgood Marshall: Mr. Bailey, one more question aside from this, why did you give us exhibit A? What is the purpose of that, the operator?
Pat Bailey: I am not sure which one Mr. Chief Justice.
Thurgood Marshall: It said new statute.
Pat Bailey: I do not know at the moment I think that we will just put it in so the Court could see what had been done in connection with the situation that the trial court had or the court below had put us into that the legislature had to take certain action and this was --
Thurgood Marshall: What did the legislature had to do?
Pat Bailey: Well, I think Your Honor --
Thurgood Marshall: What the legislature did was to say, if we do not do something, they will have already done something.
Pat Bailey: Yes sir.
Thurgood Marshall: Is that the only purpose of it?
Pat Bailey: I think in a --
Thurgood Marshall: I can understand why the legislature did it, but I was just wondering why you as an officer of this Court felt obliged to bring it to Court.
Pat Bailey: Your Honor, I think it is nothing more than to show what the legislature had done because I think we are in this area of filing fees in the election process, for the Court to know what we are trying to do. I think sometimes we do not know what guidelines to do and if we are wrong in something and it does give the court opportunity to possibly see the way we are handling it, the way the legislature is possibly going to handle it to where, if we are incorrect that the legislature will know what next time possibly to do to correct any of these things, and this is my only explanation for this.
Speaker: This decision of the District Court was apparently in December of 1970.
Pat Bailey: Yes.
Speaker: So have there been any elections since that time, were there any this past November?
Pat Bailey: No, the primaries will be coming up this spring and then the general election --
Speaker: And have that in the primary elections since the court's decision.
Pat Bailey: This is correct. But we submit that the payment of we think that, what we have got here in this particular case is that there are several methods that a person can reach of the office. They can do it under a banner of a particular political party, they can run in the general election on a write-in, I mean by getting on the ballot in the manner provided at the general election. I think that the court below said that some right of the voter had been infringed upon here. Actually, what the court has said that a voter has a right to vote for a particular candidate. And if the state by its statutes and regulating the election process does anything to keep a particular voter from voting for a particular candidate of his choice. If anything keeps him off the ballot, be it the filing fee or some other problem of having to do something, keeps him off the ballot. Then, it is constitutionally bad. We think that what has been done here is actually, the burden has not been put on the voter, by the law the way it is, it has been put there now because ultimately, by this statute being held invalid, the tax payer who is also the voter is going to now have to pick up the path for these elections rather than the camp. Thank you.
Warren E. Burger: Thank you Mr. Bailey. Thank you gentlemen. The case is submitted.


Warren E. Burger: Mr. Elrod, I think you may proceed whenever you are ready.
William Harvey Elrod, Jr.: Mr. Chief Justice, and may it please the Court: The petitioner in this case filed a complaint containing a Bivens-type complaint in a state court. The respondent, who like the petitioner is a civilian employee of the Federal Government, obtained the removal of the case to the United States District Court for the Northern District of Alabama. From that point forward, the government, for all intents and purposes, appears to have been cast in the role of defendant. I say appears to have been cast in the role of defendant. We are not suing the government. The petitioner's Bivens-type claim was that the respondent had violated the petitioner's First Amendment rights by participating as chief conspirator, if not principal procurer in the concocting and consummating of the petitioner's demotion under color of federal law and by virtue of the positions which the conspirators held. The avowed intent and purpose of the conspiracy is to punish the petitioner, to strike back, to retaliate, to pervert official power from its proper purpose for having publicly observed and spoken up about what he perceived to be rampant waste at George F. Marshall Space Flight Center in North Alabama.
Warren E. Burger: Had he... does the record show to what extent, if any, he had passed these notions and ideas and his recommendations on up through channels before he went public?
William Harvey Elrod, Jr.: The record reflects in a truncated fashion, since this comes up from summary judgment, the record reflects that the petitioner made some efforts within the organization through his representative in the manpower office to obtain some alleviation as to his personal problem. And at... as he observed that he was not alone in being misclassified or a round... or a square peg in a round hole, it ate on him. And he went public. After a series of proceedings, administrative proceedings, Mr. Bush's having gone public eventually was perceived to be within the protection of the First Amendment. I understand that the government from its--
William H. Rehnquist: It was perceived by... perceived by whom, Mr. Elrod?
William Harvey Elrod, Jr.: --By the what was then called the Appeals Review Board of what was then called the Civil Service Commission. That happened in mid-passage. This lawsuit, the Bivens claim and all, was already pending, not before the administrative proceedings had begun but they were pending concurrently because an Alabama statute of limitations would, in my judgment, possibly have cut off one of the claims that is not present before the Court had the suit not been filed when it was filed. I say not present before the Court, it's not included within the petition. It's in the record. As I understand the government's brief in this case, the government concedes what it candidly describes as petitioner's well... the well-established constitutional right which the petitioner asserts. What the government disputes is the petitioner's right... or is whether the petitioner has a Bivens-type remedy for the impairment of that right. In effect, the government currently, in defense of an opinion rendered on remand by a Court of Appeals, currently espouses the second branch of the Carlson against Green formulation as to whether an alternative remedy or as to whether there is a basis for barring or defeating at the threshold a Bivens-type claim. And that second ground, of course, is that Congress had manifested its intent. I don't want to get into an area of semantics, but it specifically... explicitly states, but I will say clearly manifests its intent that an alternative remedy which it has adopted is intended as a substitute for a Bivens-type action and is viewed by Congress--
Sandra Day O'Connor: Mr. Elrod.
William Harvey Elrod, Jr.: --Yes, ma'am.
Sandra Day O'Connor: I suppose it's your position on behalf of Mr. Bush that what was lacking here was a right to obtain compensatory damages for embarrassment or anxiety resulting from the demotion, and the failure to have a means of getting punitive damages and attorney's fees. Is that right?
William Harvey Elrod, Jr.: In damage terms--
Sandra Day O'Connor: Those are the elements that are lacking in the Civil Service remedies?
William Harvey Elrod, Jr.: --It is--
Sandra Day O'Connor: And is it your position then that denying Mr. Bush the right to get those elements of damages violates the Constitution?
William Harvey Elrod, Jr.: --It is my position that it would, although I am speaking to a judicial tribunal, that it would be an invidious kind of distinction.
Sandra Day O'Connor: Well, would it violate the Constitution--
William Harvey Elrod, Jr.: Yes, ma'am, I think it would.
Sandra Day O'Connor: --to... and what provision of the Constitution?
William Harvey Elrod, Jr.: I did not... it would... it would, in my judgment, and I realize that I am venturing where in... rushing in where some people fear to tread... in my judgment, a decision that the denial of the dignitary elements of a government employee's claim in a Bivens-type suit otherwise well grounded, assuming that, of course, as we will upon summary judgment, that denying him that would be denying a discrete isolated group of people the same protection of the law that the citizenry at large has.
Sandra Day O'Connor: An equal protection clause--
William Harvey Elrod, Jr.: Access of courts--
Sandra Day O'Connor: --violation?
William Harvey Elrod, Jr.: --whether it be viewed as part of equal protection or as an extension of freedom of expression. Prisoners have access to court. Aliens have access to court on Bivens-type claims. Only, apparently, government employees, if the lower court is correct, so far as a class, as a discrete class, those who have had the benefits of Civil Service remedies which come down on the bottom line to reinstatement and back pay.
William H. Rehnquist: Well, if a government... a government employee who was beat up or unreasonably searched by FBI people would certainly have a Bivens claim.
William Harvey Elrod, Jr.: Yes, sir, he would, and he would not be covered by any Civil Service act that I know of.
William H. Rehnquist: No, because the Civil Service doesn't purport to regulate... the Civil Service doesn't purport to regulate that relationship. But the Civil Service Act certainly can be argued, don't you think, to regulate the relationship between the government as employer and its employees from the Pendleton Act on?
William Harvey Elrod, Jr.: That act... that argument has certainly served as plausibility. I am not sure that it applies in this case. I am sure that there... that the government as employer has been interested in civilian employees since even before the adoption of the Pendleton Act. I think the government does have other interests as an employer than it has... from those that it has in some other capacity. I suggest to this Court... I submit to this Court that the Civil Service remedies which the government postulates here as a bar to the maintenance of a Bivens suit in the premises of this case do not meet the test standard prescribed by this Court in Carlson against Green, for as Justice O'Connor pointed out, among other things, they afford no recompense whatever with respect to the dignitary elements of the petitioner's claim. And we consider that interest in personality, how it is shielded by the Bill of Rights. And we would consider the policy often enunciated by this Court, a policy of maximizing the vindication of constitutional rights.
Warren E. Burger: Well, your position necessarily means, I take it, that in unlawful discharges or demotions or failure to get a promotion that was due, the Civil Service remedy enacted by Congress is not the exclusive remedy?
William Harvey Elrod, Jr.: It is unless it's constitutional deprivation bar.
Warren E. Burger: Unless what?
William Harvey Elrod, Jr.: Unless the promotion... the adverse action, as they used to call it, I think we call it unwarranted or unjustified now... unless the adverse action is unconstitutional, the Bivens... there is no Bivens remedy, of course. The administrative remedies are excluded.
Warren E. Burger: Bivens had nothing to do with an employee of the government, did it?
William Harvey Elrod, Jr.: Sir?
Warren E. Burger: The Bivens remedy, as defined in the Bivens case, was not a remedy for government employees, was it?
William Harvey Elrod, Jr.: As... in the Bivens case it was a remedy for Webster Bivens, who as the Court perceived, or a majority of the Court, no other remedy that was made. In Carlson against Green, which expanded Bivens, as I perceive it, it was stated that Bivens established that a citizen, the victim of an unconstitutional... of unconstitutional deprivation had a right of action, sounding and damages... I am paraphrasing, of course... against--
Warren E. Burger: A citizen... a citizen who was not an employee, however. Is that not true?
William Harvey Elrod, Jr.: --So far as I know, this is the... the first employee case to reach this Court with a... where a government employee was asserting a Bivens-type claim.
Warren E. Burger: Well, he might... the government employee might, as Justice Rehnquist suggests, have a Bivens-type claim in some circumstances. The question is whether he has a Bivens-type claim arising out of government conduct or alleged government conduct for which other remedies have been provided.
William Harvey Elrod, Jr.: Well, with some deference, I suggest that I have failed adequately to state what we are complaining about. Your perception probably is absolutely accurate on the basis of what I have said. I want to make it abundantly clear that what we complain of is something that took place before the wheels of the governmental machinery were engaged. It is a tort antecedent to the engagement of the wheels of that machinery. It is a tort by one in place of power where the other... in a place where the... the tortfeasors entering into the conspiracy would otherwise not have any meaning unless he were in that place of power. We are not complaining about the personnel action as qua personnel action. We are complaining about a tort by Doctor or Mr. Lucas in concocting and arranging and procuring what amounts by... by analogy to the malicious prosecution of administrative proceedings.
Thurgood Marshall: Mr. Elrod, in the Bivens case, following up on the Chief Justice's question, there was no other remedy available to Bivens, was there?
William Harvey Elrod, Jr.: There... arguably, the New York remedy as tort law remedies were rather meaningless, and of course, the--
Thurgood Marshall: Well, you realize that my next question is going to be that this one wasn't remedyless?
William Harvey Elrod, Jr.: --He had... he had--
Thurgood Marshall: You had a remedy in your case.
William Harvey Elrod, Jr.: --He had a remedy. He had a partial remedy just as--
Thurgood Marshall: Well, how do you say this is a Bivens case? The Bivens case didn't have but one remedy.
William Harvey Elrod, Jr.: --Well, in Carlson--
Thurgood Marshall: Your case has two remedies.
William Harvey Elrod, Jr.: --In Carlson, Mr. Justice Marshall, in Carlson against Green, the first issue assumed that the allegations of the complaint would support an action under the Federal Tort Claims Act. Notwithstanding that, this Court held that the remedies were cumulative and parallel and that the, as I... as I perceive Green, the ruling, and that the FTCA claim or remedy did not bar a Bivens remedy.
Thurgood Marshall: Well, why do you say it's a Bivens-type case?
William Harvey Elrod, Jr.: Because it's directly under the Constitution--
Thurgood Marshall: You're relying on another case, not Bivens.
William Harvey Elrod, Jr.: --Well, Bivens is an extension of Carlson. It's a Bivens type. We would speak of Clifford Trust and Totten Trust and so forth. It's taken on a generic secondary meaning. An action brought directly under the Constitution without intervening enactment by Congress authorizing the federal courts to entertain such an action.
Harry A. Blackmun: Mr. Elrod, I suppose one could say that there are some advantages in going the Bivens route, if you have it, over the administrative route. But there are other advantages in going the administrative route over the Bivens route. Am I correct in--
William Harvey Elrod, Jr.: Eminently so, sir. As a practical matter, I do not know why anybody other than a pioneer would start a Bivens-type suit, a crusader, a pioneer, or a Don Quixote.
Warren E. Burger: --Now, did he recover some $30,000 in back pay before he was reinstated?
William Harvey Elrod, Jr.: At the time of his reinstatement under the Back Pay Act, as amended, he received full pay.
Warren E. Burger: And that amounted to some $30,000?
William Harvey Elrod, Jr.: Some $30,000. It's not in this record, but it had to be true. Upon which he paid taxes and upon which his insurance was deducted. He has... his economic losses, while they embrace the matter of attorney's fees and of lost leave time, they are not of great moment in this case. The dignitary elements are: the right of the individual to... to be free from this type of tyrannical action by a middle-level martinet.
Warren E. Burger: On your theory, is it not true that a great, great number of employee discharges or failures to get promotions or tenure or whatever in government might well be open to both the Civil Service remedy and the remedy that you are seeking here? That is, in many, many cases, the allegations... in 27 years I have seen hundreds of them now in the federal courts... many, many cases the allegation is that the boss was biased, that the hearing board was not impartial, that somebody was out to get him and that sort of thing. All those would add up to a Bivens tort claim, at least, too, would they not?
William Harvey Elrod, Jr.: On paper. Particularly since Harlow against Nixon... or rather Fitzgerald against Harlow, I should think that they would be rather easily disposed of, if not on motion to dismiss, then by... on motion for summary judgment interposed by a government lawyer at no expense to the defendant.
Warren E. Burger: Well, in 1883, if that was the year when Congress created what we now call the Civil Service System, was not the purpose of providing a remedy that would be inexpensive and fair and not put him... put the employee to going into the courts?
William Harvey Elrod, Jr.: I don't read anything in the Pendleton Act that has anything to do with remedies. I may have misread it. It created a merit system, partially eliminated the spoils system, said that people who habitually used too much alcohol couldn't be employees, and created a Civil Service Commission. And then over the course of time we have the housekeeping details gradually developing until we have some remedies coming in with more to follow.
Warren E. Burger: Prior to that... prior to that there was no real remedy at all, was there?
William Harvey Elrod, Jr.: Initially, it was hard to tort, insofar as... in remedial terms. The government in this case, I don't believe, will make or has made any serious pretense of demonstrating that Congress explicitly has provided an alternative remedy. I said this was an alternative for a Bivens-type remedy, in effect. I do not read the several successive Civil Service statutes to which the government refers as occupying the field or as advancing an intention on the part of Congress to preclude this Court from inferring remedies. Bivens was decided in 1971. Congress has been in session several times since then. In 1974 it adopted the... amended the Federal Tort Claims Act by creating a remedy which it explicitly stated to be parallel... I suppose I could I get into the quagmire of the legislative history... for which there is some data to support the conclusion that it conceived it was creating a parallel remedy. In 1978, which... in an act which take effect... took effect after the effective date of Mr. Bush's reinstatement, Congress undertook to enact whistle-blower protection legislation. It did not in terms exclude Bivens, nor do I... I submit did it manifest an intent to occupy the field. But Congress has left Bivens in place for whatever the claimant. Now, we have then a civil servant who either has or doesn't have the... is entitled or is not entitled to the same measure of recovery for the same wrong as the citizenry at large. If he's not... I frankly do not perceive a viable reason why he shouldn't be... but if he's not, we all need to know it. The... we have a civil servant who is either entitled to full recovery... in full recovery against the federal functionary as he would be against a state functionary under 1983 28... 42 U.S.C. in 1983, the Civil Service Act. There is no question that recovery could be had, that they could carry out under the Civil Rights Act or under the Common Law analogues of malicious prosecution. This alternative, this postulated remedy does not make Mr. Bush whole, it does not deter like-minded bureaucrats from doing by some other means what we aver that Dr. Lucas did in this case.
Sandra Day O'Connor: Mr. Elrod, do you suppose Congress could expressly adopt remedies saying that they intended to provide a cause of action here that would be a substitute for Bivens but a cause of action that would not grant punitive damages or attorney's fees?
William Harvey Elrod, Jr.: Yes, ma'am.
Sandra Day O'Connor: Would that be all right?
William Harvey Elrod, Jr.: I have to--
Sandra Day O'Connor: So it isn't a constitutional requirement thing that these remedies be provided.
William Harvey Elrod, Jr.: --It's a constitutional requirement that all litigant assemblies situated receive similar treatment.
Sandra Day O'Connor: So Congress couldn't provide something otherwise even if it expressly intended to do so?
William Harvey Elrod, Jr.: It could limit it to government employees, in my judgment.
Sandra Day O'Connor: Congress could not--
William Harvey Elrod, Jr.: Without some demonstration--
Sandra Day O'Connor: --expressly limit a remedy to government employees, in your view, under the Constitution?
William Harvey Elrod, Jr.: --Not... and not in view of the careful treatment which this Court has given similar problems in such cases as CSC against Letter Carriers and in BMW against Mitchell where it has searched and strained and required experiential empirical data to justify the restriction.
Warren E. Burger: Mr. Geller.
Kenneth Steven Geller: Thank you, Mr. Chief Justice, and may it please the Court: The fundamental flaw in petitioner's position is that it starts from the erroneous premise that a cause of action for damages based on an alleged constitutional violation is an essential ingredient of the constitutional right itself. Based on this faulty assumption which confuses rights and remedies, petitioner asks as he did a moment ago why should federal employees be deprived of this right when state employees, for example, in a comparable situation would be able to bring a personal damages action in federal court. And the answer is an obvious but nonetheless extremely important one. State employees can bring suit because Congress in Section 1983 has expressly legislated a cause of action for damages. Now, Congress has not done so with respect to federal employees such as petitioner. Instead, Congress has set up an elaborate and comprehensive administrative mechanism, followed by judicial review, as a means of remedying adverse personnel decisions in federal employment, including personnel decisions alleged to be based on some unconstitutional motivation. Now, this administrative scheme can provide adequate make-whole relief, and it represents the product of literally a century's worth of careful balancing of the rights of federal employees and the demands of the federal employment relationship. And we submit that it would be an unwarranted intrusion into an area plainly reserved to Congress if this Court were to create an additional damages remedy superimposed on top of the remedy Congress has provided, absent any statutory authority to do so. Now, this case is, of course, merely the latest in a series of constitutional damages actions that this Court has considered in the dozen years since Bivens was decided. But it's important to realize at the outset that this case is fundamentally different from any of the prior cases. This case is unlike Bivens itself because in Bivens Congress hadn't addressed the remedial question at all. The argument made in Bivens was that the claimant in that case should be relegated to his remedies under state tort law. And this case is also unlike Davis against Passman because in Davis the claimant was expressly included... excluded by Congress from a comprehensive statutory remedial scheme and would have been left entirely remedyless absent the Bivens action. Finally, it is unlike Carlson against Green because in Carlson Congress had set up a judicial remedy that was not designed with constitutional violations in mind and was plainly intended to serve as a complement to rather than as a replacement for a Bivens remedy. Now, in each of these cases, before allowing a Bivens remedy, the court ensured that Congress either had not addressed the question of what remedy to provide or had addressed it in a way that was not intended to occupy the field. The court, in effect, was legislating interstitially. It was carrying out Congress' intent by providing a remedy in a case properly within its jurisdiction, but in a way that didn't frustrate Congress' primary lawmaking power. Now, the question here is very different. Congress has provided an express statutory remedy. That remedy is in the Civil Service laws. And it's expressly designed to deal with, among other things, constitutional violations of the kind alleged by petitioner here. And Congress has done so in a comprehensive way that really leaves very little doubt that that remedy is intended to be exclusive. We believe that Congress' intent should be followed here as well as it was in Bivens, Davis, and Carlson. Now, the Court has organized uniquely into Congress' intent in the past by essentially asking two questions: First, does there exist another federal remedy equally effective in the view of Congress? Second, if there is no other available remedy, are there nonetheless special factors counseling hesitation such that Congress couldn't have intended the courts to intrude into a particular area simply based on the power of the jurisdictional ground? And we believe that both questions lead to the answer given by the Court of Appeals in this case.
Byron R. White: What ground did the Court of Appeals go on?
Kenneth Steven Geller: The Court of Appeals focused on the... on the second ground, the counseling hesitation, although in the course of it it described the very comprehensive Civil Service remedies that... that the... that federal employees have... have available to it. I think the court might have done that on remand after this Court decided Carlson against Green because there was a statement in Carlson about requiring an explicit statement by Congress.
Byron R. White: So they didn't... they didn't come out with the ultimate conclusion that you suggest in your first argument that Congress intended the remedy provided to be exclusive?
Kenneth Steven Geller: Well, they didn't in those terms, Justice White, but both questions are really designed to answer the same question, which is: What is the intent of Congress? Did Congress intend the courts to--
Byron R. White: So you are just presenting one ground, not--
Kenneth Steven Geller: --We rely on both grounds here, although we think that the... the way to analyze this case is to look and see as the court did in Bivens and Davis and in Carlson whether there was some other adequate remedy available to the claimant, and if there is, and if Congress intended that remedy to be exclusive, that's really the end of the judicial inquiry.
Byron R. White: --Well, if we disagree with that, if we didn't embrace the Court of Appeals' rationale, you nevertheless suggest we affirm on--
Kenneth Steven Geller: Absolutely, yes. We argue--
Byron R. White: --the ground you present?
Kenneth Steven Geller: --Yes. We argue both, we argue both of these points below. And as I say, there are really separate ways of answering the same question, which is: What was Congress' intent? Let me say that this is at bottom just a federal employment dispute. Petitioner was given a two-job grade demotion from GS-14 to GS-12 following a disagreement with officials in his agency about internal agency practices. Now, his superiors claim he was demoted for publicly making false and misleading statements about his job that disrupted his agency's activities and undermined employee morale. And petitioner claims on the other hand that he was in fact demoted simply for justifiably criticizing his superiors. This is the sort of dispute that in the private sector would be resolved internally or by contract or arbitration or something like that. And in the federal employment sphere as well, the court has been extremely deferential to the executive branch and to Congress in settling these courts of... these kinds of internal employment disagreements. So even in the absence of any guidance by Congress, we think that this is an area that counsels hesitation in the implication of a Bivens remedy. But here we don't have congressional silence at all. What we have is an extremely elaborate, comprehensive, adequate system of administrative and judicial remedies that Congress has set up precisely to deal with the sort of question that is raised in this case. Aggrieved employees can challenge adverse personnel actions, and including personnel actions claimed to violate their constitutional rights. They can pursue... pursue those remedies through two layers of administrative review, followed by judicial review. And if they eventually prevail, they are entitled to complete make-whole relief. They can get back pay, as Mr. Bush did, reinstatement, restoration of all employment benefits, correction of any personnel records. The Congress clearly thought when it was passing the Back Pay Act, it was passing complete perfecting legislation to make the employee whole. And this Court said much the same thing in Samson against Murray and Arnett against Kennedy. In fact, it's quite peculiar in a sense that the petitioners would argue that a Bivens action is more effective than... than what Congress has already provided for someone who claims... whose claim is based... basically an employment dispute. Someone who claims he was demoted or fired, it would seem that any remedy that didn't include something like reinstatement would be ineffective. And yet we're told here today that the only effective remedy is a constitutional damages action. Indeed, petitioner pursued these very remedies and, I said... as I said a moment ago, received reinstatement, back pay, and restoration of all benefits. Now, we submit that when Congress has spoken as clearly as it has here, there is simply no room left for the Court to legislate interstitially. There is no need for the Court to create a damages remedy to vindicate constitutional rights, because Congress has already announced the remedy it believes should be applied in that situation. And that remedy is plainly an adequate one. If the Court's statement in Bivens, Carlson and Davis about Congress' ability to substitute for a Bivens remedy with something that it believes to be equally effective means anything, it has to mean that Congress can do what it did in this case in the case of federal employees. And I think what the Court meant in Carlson when it talked about an explicit statement, requiring explicit statement by Congress, I don't think the Court meant anything more than Congress had to be legislating with the Constitution in mind, unlike, for example, in Carlson against Green, where the claim was that a tort claim remedy was a substitute for a Bivens action even though Congress in passing that tort claims remedy certainly wasn't legislating with the Constitution in mind. In fact, it wasn't even enough under the tort claims remedy to prove a constitutional violation, the plaintiff had to mold his claim into the form of a common law tort in order to recover. But here the Civil Service remedies are clearly addressed to, among other things, constitutional violations. In fact, as we point out, one of the early Civil Service laws, the Lloyd and Fallon Act, was passed to prevent the sort, the same sort of adverse personnel actions that petitioner Bush claims he suffered in this case, where Congress was concerned that Presidents Taft and Roosevelt had issued gag orders preventing executive branch employees from... from complaining to Congress about abuse or mismanagement in the Federal Government. So we think that what Congress has done here is in... it is to pass a remedy that certainly in its view, and the Court said in Carlson against Green that it has to be equally effective in the view of Congress, not in the view of plaintiffs or even in the view of this Court. And we think that that is what they have done here and that the Court of Appeals therefore properly affirmed the dismissal of petitioner's complaint for failure to state a cause of action directly under the Constitution. And we would ask that that judgment be affirmed. If there are no further questions?
Warren E. Burger: Thank you. Do you have anything further, Mr. Elrod? You have 4 minutes remaining.
William Harvey Elrod, Jr.: May I submit to the Court a close and careful collation of the legislative materials which the government itself cites in this case will not disclose that Congress has ever done more in the area of remedies for the type of grievance that Mr. Bush has than it did for the type of grievance that Mrs. Green had in Carlson against Green. I submit that it is erroneous to say that we complain of a personnel action. We complain of the procuring of this personnel action which resulted in our being punished for having exercised a constitutionally protected freedom.
Warren E. Burger: Thank you, gentlemen. The case is submitted.
Speaker: The Honorable Court is now adjourned until Monday next at 10:00.