Warren E. Burger: We will hear arguments first in 72-1264, Mayor of Philadelphia against Educational Equality League. Mr. Mattioni.
John Mattioni: Mr. Chief Justice and may it please the Court. This matter arises out of an action commenced in the United States District Court for the Eastern District of Pennsylvania, wherein the respondents sue the Mayor of the City of Philadelphia, then James H. J. Tate, and the members of the Educational Nominating Panel. The allegations made contended that the appointment to that panel discriminated on the basis of race and, therefore, it was requested that the appointments made by the Mayor be strict in as invalidly made under the constitution. In order to fully understand what the case is all about, it is necessary to understand something about the Educational Home Rule Charter provisions of the City of Philadelphia and the method of selecting and appointing members of the School Board. In 1965, the electors of the City of Philadelphia adopted a new home rule charter establishing a Home Rule School District. This was a result of a Commission appointed by Mayor Tate which studied the problem and nature of the school district some-years before the City of Philadelphia having obtained an almost complete home rule in all other aspects. The legislature of the common law of Pennsylvania had authorized, now something new, a home rule for the School District of Philadelphia as well. A Commission was appointed and, because of various problems, came up with what essentially was experimental in nature, and also represented something of compromise. The method of selecting members of the School Board, which is not an issue in this matter before the Court, was determined essentially as follows. The Mayor of the City of Philadelphia would appoint 13 members of the Educational Nominating Panel. Those 13 members would in turn, for each vacancy on the Board, recommend initially three, and if the Mayor requested, an additional three persons from which the Mayor could make the appointments to the Board of Education. The 13 of the 39 were required to be appointed from certain classes of organizations within the City of Philadelphia. There were supposed to be citywide in scope and representative of such groups as the labor, commercial interest intergroup relations, parent-teacher associations, public education representatives, general community organizations of citizens, organizations for the purpose of improvement of local government, higher education in the form of someone who is Head of a higher education institution in the City of Philadelphia, and a group concerned with the physical resources of the city.
Warren E. Burger: Were these groups indicated by name or by category?
John Mattioni: By category, Your Honor. They were not -- the charter did not specifically say group X must be the one from which appointments are made but, rather, said for example, with respect to labor organizations, a council for other organization of labor unions in the city, and it did not say that it had to be a particular one. The framers of the charter, being aware and being concerned with the fact that if you specified a particular organization now, that might go out of existence in the future or it might become invalid in the sense that it although is still in existence it might shrink in size and not be citywide.
Harry A. Blackmun: Mr. Mattioni, perhaps you’ve covered this. I want to be sure. There’s no attack made here on the composition of the School Board itself as distinguished on the panel.
John Mattioni: That’s correct, Mr. Justice Blackmun. The attack here is solely on the appointments made to the Educational Nominating Panel, not to any appointments made to the School Board of the School District of the City of Philadelphia and, furthermore, there’s no attack made on the Charter Scheme for appointments to the Board of Education nor any attack made on the validity of the nine categories and then, after those nine, there is four that are appointments in essence at large by the Mayor where he has total discretion in terms of those four. Now, they say, I believe that this is essentially an experimental type concept and at least until this attack seemed to work reasonably well. The harder guts of the whole procedure was that you wanted to have on this panel persons who represented, in essence, all of the various kinds of problems that a School Board and a School District would have to deal with during the course of its existence. As, for example, we all know in a-- in large urban School Districts now and indeed in many of the smaller ones, there are truculently substantial labor management relations problems and, of course, in Philadelphia where we do not escape this, in the last couple of years, we’ve been subject to rather extended and protracted labor disputes with school teachers and labor disputes with other support personnel in the School District. The School Board has to contend with economic problems of a rather major proportion and, again, the purpose of the charter was to make sure that we had represented on the Nominating Panel people who could screen applicants and not possible nominees for the School Board to insure that they met at least minimally all of the necessary requirements, and the concept was to have people on the Nominating Panel who had expertise in their particular areas. As, for example, an organization dealing with intergroup relations, because it’s quite clear that urban School Districts have substantial race relations problems and other problems of a similar nature and I think this is borne out by the fact that the Head of the Charter Commission wrote and as quoted in respondents’ brief, “the Panel’s composition should be so-arranged in the charter that it can always constitute a balanced representation or a cross-section of the entire community, all of the community’s ethnic, racial, economic, geographic elements and segments” and the point here and the reason why I’m dwelling on this is it’s important to understand that this charter, at this charter scheme was intended to be representative in a very much broader sense than simply on the basis of Black and White.Respondents would have that the only consideration is representation on the basis of Black and White. I believe this is further borne out by the fact that we’re here dealing with the fourth largest city in the United States, a city with a population of approximately 2 million people, a city which has in its populous persons from all kinds and all manner of racial and ethnic backgrounds. For example, there are large concentrations of Italian-Americans, Russian-Americans, German-Americans. There are large concentrations of Blacks and of course Blacks, like all other people, can’t be put into a bowl and mixed up. These are diverse people. They are, if nothing else, they can be divided into two broad general categories: Blacks who were in Philadelphia for hundreds of years, who predated even the Constitution of the United States, and those who are of very recent migration from areas in the South. But in addition to that, in addition to the variations in population, Philadelphia is a large industrial city. It has heavy industry, oil refineries, smelting industries. It’s a large commercial center. It has banks and brokerage houses and stock exchanges. It has large commercial areas and retail sales and the like. It’s a major port facility in the United States. It’s probably the third or fourth largest port in the United States in terms of tonnage and Philadelphia, perhaps more important than all of these things, is known as a residential city and, of course, it’s a city with problems, very substantial problems, but those problems are being dealt with here notwithstanding all of that. The respondents came into Court alleging that Mayor Tate was guilty of discrimination on the basis of race making his appointments to this Educational Nominating Panel. This was proven by the plain -- by the respondents almost entirely on a strictly statistical basis but, at no time in the Court below did the respondents ever proved and that the statistics upon which they relied had any statistical significance. Not only did they not prove statistical significance, but they never proved the practical and actual significance in an ordinary everyday sense. What they did prove was that in 1971 Mayor Tate appointed two Blacks out of 13 members to the Nominating Panel. That from 1965, through the appointments made by the-- in 1971, Blacks were appointed to the Nominating Panel on the basis of an average of two out of thirteen or, in percentages, approximately 15.4%. They also attempted to prove discrimination in appointments to the Nominating Panel on the basis of alleged discrimination by Mayor Tate in his appointments to city government, and that was purported to be done by establishing from the records produced by the City of Philadelphia that of all of the persons appointed, not necessarily by the Mayor but employed by the City of Philadelphia earning $20,000 or more, that only approximately 9 or 12%, and I’m not -- the particular percentage -- at the moment, were Black as opposed to a population of 33% Black. And that in the Boards and Commissions the Mayor appointed 12% Blacks as opposed to the same population of 33%. The respondents went further than that and said that, because the population of the School District in terms of its pupils was approximately 65% Black, that this necessitated some additional consideration of race, I believe in this instance a new category never before sanctioned by any Court, reference to the school population as opposed to the city population of persons who should be considered as eligible for nomination or appointment to the Nominating Panel. Countering this, the petitioners submitted evidence, first of all, took the position that there was no statistical significance proved and, second of all, submitted evidence that the Mayor’s appointments to various positions in city government, insofar as the relationship between Black and White was concerned, was substantially better than private industry in the same city, substantially better than national averages in the United States, substantially better than other governmental agencies. More importantly, petitioners put in evidence, which was not contradicted in any way, shape, or form, that the City of Philadelphia’s workforce is 41% Black as opposed to 33% in the population, that 24% of the middle management was Black, that somewhere between 9 and 12% of upper management was Black. Now from this, of course, the respondents would derive some kind of discriminatory pattern. However, it was further established that under then Mayor Tate’s regime, as Chief Executive Officer of the City of Philadelphia, the pattern of employment of Blacks in all levels, in the lowest levels, in middle management, in upper management had increased substantially over the 8 or 9 or 10 years that he had been in office. That he had continually taken pains to ensure that qualified Blacks were continuously appointed and promoted and reappointed and re-promoted as fast as could be done under the circumstances, and without infringing upon the rights of any other person or persons in the community. The only complaint in essence that respondents have is that, in their view, it wasn’t done fast enough and, because there was some alleged statistical underrepresentation of Blacks, that all of a sudden this had to prove racial discrimination on the part of Mayor Tate but, quite the contrary is true when considered in complete context. Respondents went one step further. They said that they proved actual discrimination on the part of Mayor Tate in his appointment, and this goes back then to question of what that evidence was, and bearing in mind that the District Court judge who heard the evidence refused to find actual discrimination. The Court of Appeals, on the other hand, found that there was evidence of actual discrimination which was not rebutted on the record. We believe that the Court of Appeals clearly violated Rule 52 (a) of the Federal Rules of Civil Procedure because the finding or the refusal to find discrimination by the District Court judge was not clearly erroneous and was, in fact, supported by substantial evidence in the record. The only evidence of alleged actual discrimination was a testimony of W. Wilson Good who said that in 1696, two years before the actions of which complaints now made, Mayor Tate had publicly said at the time the Mayor made a public statement that he was not going to appoint anymore Negroes to the Board because, in his feeling, they had adequate representation and that he was going to appoint someone from the Nominees to the Board of Education. Well, I submit that that’s a rather thin ice upon which the bottom, a finding of actual discriminatory intent on the part of the Chief Executive Officer of the city of Philadelphia. Not only is that rather thin evidence, but it was clearly refuted in evidence by the person who had been instrumental in making the appointments acting as an aid to Mayor Tate. He specifically said that Mayor Tate was an old warhorse politician, and that he took into account all of the necessary things and his -- one of his primary criterion in making appointments was to be sure that everybody had adequate representation on these kinds of Boards or Commissions, including the Nominating Panel. And, of course, in the final analysis, the question really comes down to, looking at the Educational Nominating Panel itself, considering what it's purpose was, considering what it was intended to do, intended to achieve and how it was intended to achieve it, a finding of discrimination whether inferentially based on statistics of which the significance was never proved or based upon the meager testimony of W. Wilson Good, which was contradicted and which was not accepted by the trial judge who heard the testimony, is grossly unfair to the Mayor of the City of Philadelphia. Indeed, it does more harm to the City of Philadelphia than good in every way, shape, and form that could be imagined or considered. The respondents placed particular emphasis on several decisions of this Court I believe that they rely most strenuously upon Calvin Turner versus Fouche, a decision by this Honorable Court in January of 1970. The difficulty, I believe, with that-- placing reliance upon that case which must, of course, be read in tandem with Carter versus Jury Commissioner of Greene County, is that, there, the issue involved: appointments to a jury panel -- grand jury panel which in turn then appointed a School Board, and the evidence showed rather clearly and dramatically that discrimination was involved in the selection of grand jurors by the Jury Commission. Now, the Jury Commissioners in that case stand essentially on a footing, on the same footing with the Educational Nominating Panel in this case and, interestingly enough, the plaintiffs in that case wanted to set aside the appointment of the Jury Commissioner, and this Court refused to set aside that appointment notwithstanding that all of the Jury Commissioners were White and notwithstanding it was proved that they were guilty of discrimination. In the matter before the Court now, there is not one iota of evidence to establish that the Educational Nominating Panel, the very panel which is being attacked by the respondents, acted in any way in a discriminatory manner in making its recommendations for appointment to the Mayor. There isn’t even a contention made here that the Mayor discriminated in making his appointments to the School Board. That is the Board which was charged with the responsibility of running the school system, not the Educational Nominating Panel. It was simply an instrument to (a) the Mayor in making nominations to the School Board. Of course, the reason why no contention was made to that effect is rather clear. At the present time, 33% of the School Board is Black and, at the time that this case was in suit, 24% was Black, and the School Board has never been without Black representation nor has the Educational Nominating Panel been without Black representation. Indeed, if the criteria sought to be established by respondents were accepted by this Court, we would have an almost insurmountable problem because every recognizable ethnic minority, every recognizable minority of any kind be it Asiatic, be it Italian-American, be it Russian-American, Black-American would have the same right to proportional representation on this panel, but this is a panel of 13 members and that’s an impossibility. Respondents’ witnesses testified, for example, that the Puerto Rican-Americans in the City of Philadelphia were absolutely entitled to representation on this panel. But, the problem with that is that on a proportional basis, they couldn’t be entitled to representation because they represent less than 3% of the population of the City of Philadelphia, and one person on the Educational Nominating Panel represents 8%. So that, they don’t even have enough to say that we’re entitled to half of one person on the panel. And, if we were to accept that proposition, then no person who was Puerto Rican could ever appointed to the panel because he’s not entitled to his proportion on that panel. No person of Chinese-American extraction in the City of Philadelphia could ever be entitled to such representation because although we have a strong and viable Chinese-American community in Philadelphia, it’s small and it’s too small to be entitled to a proportion that share on this panel. And so under those circumstances, it would represent a gross inequity to all other minorities and, indeed, to those who might be considered as a majority, if there is one, in any urban center in the United States today.
Harry A. Blackmun: Mr. Mattioni, let me get this evidence in focus. Is it correct to say that there -- well, I ask, is there any evidence other than the statistical material, the newspaper comment, and the Deputy Mayor’s alleged lack of knowledge that supports the decision of the Third Circuit here?
John Mattioni: I believe there is not, Your Honor. I believe, however, that respondents could point to one other piece of evidence and that is the fact that the School Board of the City of Philadelphia is under an order to desegregate the school system of the City of Philadelphia. However, that doesn’t really bear on the Nominating Panel because the Nominating Panel has absolutely no responsibility with respect to running the School Board.
Harry A. Blackmun: Now, one other question. Is there any allegation of discrimination here that is not directed personally to Mayor Tate as distinguished from the current mayor?
John Mattioni: I believe there is not, Your Honor.
Harry A. Blackmun: And yet you have injunctive relief granted.
John Mattioni: Well, the Court of Appeals indicated that an injunction should be entered against the present mayor because Anthony Zecca, the Deputy Mayor to change Tate, is still on the staff of Mayor Rizzo, of course his position on that staff is substantially different. That’s the only nexus or connection. Other than that, there is none.
William H. Rehnquist: Is there any indication that the Deputy Mayor who’s held over exercises independent judgment free from the Mayor’s supervision?
John Mattioni: Absolutely none, Your Honor. Of course, one thing I have not touched upon which also should be kept in mind by this Court is the fact that we are here dealing with the appointments by the Chief Executive Officer of the City of Philadelphia. Now, of course in first blush, one might say “well, what’s that got to do with all of this?” I mean, after all, he’s not the President of the United States, but it has this much at least to do with it. He is a Chief Executive Officer. He is clearly the representative of the Executive Branch of government, and he -- we are here dealing within the context of the appointments to be made, a clear question of executive discretion in the appointment power of the Mayor of the City of Philadelphia. Now, the Court of Appeals took the position that petitioners had argued that we could only refrain from interference with appointments of the Mayor or Chief Executive in terms of appointments that are close and personal. In other words, I think they were suggesting that only those personal staff members of the Chief Executive Officer were considered for entitled to any kind of protection. We submit to this Court that that is not an appropriate method of approaching the problem at all. In a long line of cases in this Court, appointments of Executive Officers, the President of the United States had been protected again and again and again and again. This Court has determined quite clearly that where the President of the United States exercises discretionary power committed to him, that Courts either should not interfere or certainly should be loathed to interfere, except on the weightiest of evidence. The Mayor of the City of Philadelphia is not the President of the United States, but he is an Executive Officer and, of course, we do have other problems here. We have problems of the federal state relationship which we have not briefed because I don’t think those are really terribly important here, but they have to be kept in focus as well. And, we’re now talking about a man who was charged by the people who elected him with exercising his discretion in making the very appointments that are here under attack, and we submit, very respectfully, that it would be totally inappropriate. It was totally inappropriate for the District Court to even consider the matter. It was inappropriate for the Court of Appeals not only to consider the matter--
Thurgood Marshall: What are you going to do about the cases where the Federal Courts have ordered cities to employ a certain number of policemen of a certain race? You’ve forgotten those--
John Mattioni: I have not forgotten them, Mr. Justice Marshall, indeed --
Thurgood Marshall: You said there was a long line of cases on one side. There’s a long line on the other side, too, isn’t there?
John Mattioni: Yes. I submit, Mr. Justice, that that’s--
Thurgood Marshall: And you do admit that the matter is calmed by the constitution so why try to get too much out of it?
John Mattioni: Well, except for one thing, Mr. Justice Marshall. The cases you’re talking about did not really and truly involved discretion at all. When you are hiring a -- supposedly on an objective basis, on a basis where people come in, they take a test, and either they pass or fail it. They take a physical exam, and pass it or fail it.
Thurgood Marshall: You mean that the city--
John Mattioni: There’s no discretion.
Thurgood Marshall: You mean that the Mayor of the City of Philadelphia is saying I’m not going to hire a Negro under circumstances and nothing can be done about it?
John Mattioni: Well of course, factually, they could not appear here.
Thurgood Marshall: Well, I mean--
John Mattioni: I’m sorry, Mr. Justice, but--
Thurgood Marshall: Why try to go too far?
John Mattioni: I believe that, nevertheless, it’s necessary--
Thurgood Marshall: Why don’t you rely on the fact that you say it wasn’t proved in this case without saying that he’s exempt from being looked into?
John Mattioni: I think, Mr. Justice, that even if I meant--
Thurgood Marshall: Do you say that the Mayor cannot be questioned by a Federal Court?
John Mattioni: I believe that, in the case of this type, you should not be. In--
Byron R. White: Could you explain the Mayor could announce openly that he is not considering for the Nominating Panel any Negroes.
John Mattioni: If he did, he would hardly be reelected in Philadelphia, sir.
Byron R. White: That isn’t what I asked you, is it?
John Mattioni: I know, and I submit--
Byron R. White: Well, how about that? How about under the Fourteenth Amendment?
John Mattioni: Well, I submit--
Byron R. White: Would the Mayor be subject to any kind of legal redress?
John Mattioni: I submit that he would not, Mr. Justice, and the reason for that is this.
Byron R. White: Does your case depend on that?
John Mattioni: Sir?
Byron R. White: Does your case depend on that?
John Mattioni: No, it does not because I don’t believe that anything like that has been proved. On the other hand, I believe that--
Byron R. White: Let us assume--
John Mattioni: If nothing else, sir, what must be kept in mind here is this. That this is the Chief Executive Officer of the City of Philadelphia, and I certainly--
Byron R. White: Well, let’s assume--
John Mattioni: Some consideration of that fact is necessary which requires a Court to at least step back and say “well, before I’m going to get involved in this case, there’s got to be some weighty evidence establishing allegations of actual discrimination.”
Byron R. White: Well, would you take the same position if the Mayor was appointing the School Board members directly and he announced that he was not considering Negroes for the School Board?
John Mattioni: I believe, I would, Mr. Justice, for this reason.
Byron R. White: And judges and anybody that he had a party of-- in appointing?
John Mattioni: Yes, Mr. Justice, and the reason for that is simple. This is still a tri-partite form of government and if we are to have faith in the electors of our country and in our cities and the whole works, if we’re going to have any faith in that system at all, we’ve got to trust to the good judgment of the electors that if we have somebody who acts in that gross of fashion, that he will be turned out of office. It’s all it takes.
Thurgood Marshall: Are you aware the fact that this Court has ruled against governors of states?
John Mattioni: Yes, Mr. Justice Marshall.
Thurgood Marshall: Well, you say the Mayor has got more than the governor has?
John Mattioni: In different context, the Mayor is fully subject to every order of this Court and this Court has full authority, but I’m saying, in this kind of context, this Court should not.
Thurgood Marshall: What do you mean this type?
John Mattioni: In this context where we are dealing with a question of executive discretion as opposed to other types. If the Mayor, for example, got up and said “I’m not going to obey the Court --
Thurgood Marshall: Do you consider calling out the National Guard in the same category?
John Mattioni: It depends on the circumstances, Mr. Justice.
Thurgood Marshall: Well, it showed in Constantin this Court didn’t’ have any trouble questioning the government about that.
John Mattioni: But again, Mr. Justice, I think it depends on the particular facts in a given case.
Thurgood Marshall: And this -- your difference is this is filled up.
John Mattioni: No, not that, Mr. Justice.
Warren E. Burger: Mr. Wolf.
Edwin D. Wolf: Mr. Chief Justice and may it please the Court. It’s great honor for any lawyer to appear here. I’m pleased that I’m here younger than my grandfather, didn’t appear here until he was 80 and my father hasn’t appeared here at all. I represent the respondents in this case. In a way, you see in me a stand in for the United States Court of Appeals for the Third Circuit for it is their decision and their opinion that I am here defending. My clients, therefore, come before this Court not as plaintiffs, which they were below, but as parties who have -- who were found by the Court of Appeals to have proved their complaint of a violation of the fourteenth Amendment. I make this point at the outset because our argument today is that the issue before this Court is whether there is anything in the decision of the Court of Appeals that warrants this Court’s attention. The essence of our argument is that there is nothing. That the Court of Appeals dealt thoroughly and carefully with a unique fact situation, applied its earlier decisions and the decisions of this Court in an unexceptional manner, and neither developed nor applied a legal principle that warrants the attention of this Court. The underlying facts of the case have been stated by the petitioner. I would like to add just a couple of points. First of all, with regard to the purpose of the panel, the defendants below introduced a substantial amount of material which purported to represent the legislative history of the composition and the establishment of the Educational Home Rule Charter. One element that they did not mention that emerges from these documents is that there was a good deal of discussion below before the enactment of the charter about the question of whether the School Board should be elected or whether it should be appointed. There was substantial support for the election proposition. The compromise that resulted was this Nominating Panel and, particularly, in Exhibit D7x is a statement by the Chairman of the panel, a leading industrialist in the city, that the panel was supposed to be a counterpart of popular election. I think that notion is important in considering exactly what the concept of representation means.
Warren E. Burger: You mean the selection of the panel or the function of the panel after it was selected?
Edwin D. Wolf: The function of the panel after it was selected. The panel was supposed to play the role of an election in a democratic system.
Warren E. Burger: Would you say there’s quite a difference in the two?
Edwin D. Wolf: Oh, yes, because, as was pointed out in response to Mr. Justice Blackmun’s question, we are not attacking the action of the panel. I mean only the appointment of--
Warren E. Burger: How many Catholics, for example, on this Nominating Panel at the time of this litigation?
Edwin D. Wolf: I don’t know exactly. I think there were probably two or three, as best I can tell. We didn’t inquire as to religious affiliation at the trial, so it’s hard for me to tell. I know that--
Warren E. Burger: But don’t you think that’s of any importance?
Edwin D. Wolf: Well, I think that in this case we were trying to establish only that there was exclusion from consideration of qualified Blacks to the panel, and I think that that’s an important notion about our case. We have never maintained that Blacks are entitled to any particular proportion on the panel. We are not -- the Court of Appeals did not hold that. The Court of Appeals did not order proportional representation as a remedy.
Warren E. Burger: Do you know what proportion of Catholics live in the City of Philadelphia?
Edwin D. Wolf: Yes, I know that there are more Catholics than there are Blacks. I think it’s about 40%. However, there are not --
Warren E. Burger: But they have only two members of the panel, did you say?
Edwin D. Wolf: There are not very many Black Catholics who are in the public schools because there’s a substantial archdiocese in School District in Philadelphia.
Warren E. Burger: Would that, in turn, make a difference in your mind?
Edwin D. Wolf: No, because, again, we’re not talking about whether everybody is represented. We’re talking about whether there was an a priori exclusion of Blacks from legitimate consideration as members of the panel.
Warren E. Burger: You don’t know whether there was any such exclusionary attitude with respect to other minorities.
Edwin D. Wolf: No, we did not inquire into that, and our clients would not have had standing to raise that as a matter-- of course, maybe they would’ve. I don’t know whether they’re Catholic. I didn’t inquire into that because the issue that we’re concerned with is the exclusion of Blacks from consideration. The first element of proof that we developed was the composition of the Nominating Panels. In 1965, there were 10 Whites and 3 Blacks. In 1967, there were 11 Whites and 2 Blacks. In 1969, there were 12 Whites and 1 Black, and in 1971, initially, there were 12 Whites and 1 Black and, subsequently, one of the Whites indicated to the Mayor that he was no longer the Chief Executive of an organization. He was replaced by a Black. This three-two-one-two pattern, I would suggest and was found by the Court of Appeals not to be conclusive proof of racial discrimination, but was considered by the Court of Appeals to be evidence that was consistent with an inference of racial discrimination. The second thing that we proved that the District Court found as a fact and the Court of Appeals accepted as a fact was that there were Black organizations that met these standards set forth in the nine -- in eight of the nine categories in the charter document. We also proved and the District Court found this a fact and the Circuit Court accepted as a fact that the person who in fact put together the list of names, the Deputy Mayor, Mr. Zecca, did not know of many of these Black organizations. These are findings of fact 16 and 17 in the District Court’s opinion. We subsequently proved a pattern of underrepresentation of Blacks in other appointments by the Mayor. We did not prove discrimination. We did not go into that issue. What we did prove, however, was numerical underrepresentation and I think if you look at the Appendix from page 5 to 23 and you can see in a very graphic way the -- what I would regard as a litany of exclusion. You have lists --
Potter Stewart: What page is it?
Edwin D. Wolf: Pages 5 to 23 in the Appendix, Mr. Justice Stewart. Particularly with regard to the Boards, Commissions, and Authorities of the City of Philadelphia beginning on page 17. If you look at the third column and you see the number of Black persons, on most of these there is either zero or one. That’s a litany of tokenism, I think, and although we did not set out to prove--
Warren E. Burger: Could you help me a little?
Edwin D. Wolf: I’m sorry.
Warren E. Burger: What does this have to do-- would you relate that to the panel problem that we’re dealing with?
Edwin D. Wolf: Yes, sir.
Warren E. Burger: You mean this shows an attitude on the part of the Mayor?
Edwin D. Wolf: Well, Mr. Chief Justice--
Warren E. Burger: Or someone?
Edwin D. Wolf: I think that the principal issue in this case is how do you prove a case of racial discrimination? Last term, in McDonnell Douglas versus Green, Mr. Justice Powell set out at some detail the order of proof and the method of proof in a case of racial discrimination, and one of the things that he said was that when you have a respondent or a defendant or an employer coming forward to say that he had valid reasons not to hire or to have taken the personnel action into question. That you could look at other employment patterns by the same person to determine whether his defense was pre-textual is the word that Mr. Justice Powell used and, of course, this is what the lower Federal Courts have been dong ever since Title VII of the Civil Rights Act of 1964 was enacted. The question of the general employment pattern, although not determinative, is relevant as a matter of a prima facie case and it was for that reason that we introduced that evidence and, in the District Court’s opinion, some of that was the subject of a finding of fact in 17 to 19. There was a reference to some of this evidence. The Court of Appeals did not refer to it. Although, on the other hand, the Court of Appeals did say that it was considering the record as a whole. The final evidence that we introduced was testimony by one of the plaintiffs, Wilson Good, and I think that testimony is important not only for the purpose that it was cited by Court of Appeals, but also to give this Court an idea of what was going on, what the Black community was feeling about this Educational Nominating Panel and what their response was to this particular pattern of appointment. And, in that context, what happened in 1969 does become important and does reflect on 1971, and as the Court of Appeals said, it is consistent with an inference of discrimination. Again, it does not prove that in 1971 the Mayor discriminated but this evidence--
Warren E. Burger: Do you think this is the correct standard of review for a Court of Appeals reviewing findings of the District Court?
Edwin D. Wolf: Yes, because the--
Warren E. Burger: Well, may the Court of Appeals reverse if they find that a contrary conclusion to that of the District Court is a permissible conclusion?
Edwin D. Wolf: Well, in this context, they can because the issue is not a factual inference to be drawn but a legal inference to be drawn, and the legal inference is, was there sufficient evidence in the record to establish a prima facie case? If there was sufficient evidence to establish a prima facie case, then the burden shifts. This also was made clear in McDonnell Douglas versus Green last term, and that is why the question of the Court of Appeals was the right question and I think that they were correct in concluding that a prima facie case of racial discrimination was made out because a prima facie case is not conclusive proof. When I was an Assistant District Attorney in Philadelphia and trying criminal cases, a prima facie case was merely the establishment on the one side of the elements necessary to make out an offense. It was not the determination beyond a reasonable doubt or beyond any kind of doubt. It was simply the establishment on the record of elements which, if unrebutted, would be sufficient to make out a prima facie case. That is a question of law and that is the question that the Court of Appeals addressed, and it is the question on which it reversed the District Court. Mr. Good’s testimony discussed the efforts of the Black community to convince the Mayor to appoint additional Blacks to the Nominating Panel and to the School Board. He recounted that in 1969 the efforts of the Black community had had an effect on the then existing Nominating Panel, and that the Nominating Panel had submitted two out of three in submitting three names for a vacancy that came up, submitted two Black names and he also testified that the Mayor became angry at this and made a public statement that he was not going to appoint any additional Blacks to the panel, to the School Board, and I think it’s important that this testimony is not, Mr. Justice Blackmun, based only on a newspaper article. The newspaper article was shown to Mr. Zecca in his cross-examination to see what his response was, but Mr. Good did not testify from the newspaper article. In fact, the newspaper article itself stated that it was based on statements that the Mayor made on television and, although Mr. Good did not testify to this and perhaps this was no mission of mine, he did see it on television. He was not cross-examined by the City Solicitor to determine whether his information was hearsay, and the record only shows that he testified that he knew that the Mayor knew made the statement. The questioning of Mr. Zecca in this regard brought forth only that Mr. Zecca did not recall the incident. That was on page 66 and again on page 93 of the Appendix. Mr. Zecca was asked “do you recall?” And he said “no, I don’t recall.” Well those, I think, are the principal facts with respect to the facts in defense that the city developed. I think it’s important to note that Mr. Farmer who was the Chairman of the Philadelphia Commission on Human Relations did testify that there were 41% Blacks in this Philadelphia City Government. I had always assumed at trial, beginning at trial and until I received a reply brief of the city that the Mayor did have something to do with the personnel practices of the city but, according to the reply brief, apparently the Personnel Director is independent of the Mayor and, in looking at the charter, I found that that’s true. So, I’m not sure that the 41% city employment does prove anything about the Mayor. On the other hand, the testimony of Mr. Farmer showed that neither he nor anyone on his staff knew that there was a drastic reduction in Black employment in the Philadelphia Police Department which was shown in another action in Federal District Court brought by the Commonwealth of Pennsylvania alleging employment discrimination in the Police Department. That’s on page 110 of the Appendix, and Mr. Farmer, in his capacity as the Chief City Officer responsible for discrimination and employment in the city, simply didn’t know that this had occurred in the Philadelphia Police Department. Well, to go back to what the Court of Appeals did, the Court of Appeals reviewed these facts and stated with regard to them that they were consistent with a finding of racial discrimination and then apply the standard developed in the jury cases of how do you prove racial discrimination, and they said the way you prove racial discrimination is, first of all, you have to find an underrepresentation of Blacks. Second of all, you find an opportunity for discrimination, and then that is enough to make out a prima facie case and, if there is n rebuttal or at least no rebuttal of any legal weight, then you conclude that the case has been made out. Now, again, I think that what we’re always concerned with is what is the record in the case? What is the evidence that was before the Court? Now, it may be that if Mayor Tate had testified, he could’ve satisfied everybody. He could’ve satisfied everybody. The District court, the Court of Appeals, this Court. He might have even been able to satisfy the plaintiffs in the case that he did not discriminate, but he didn’t testify and the Court of Appeals made this point in its opinion. It said the Mayor didn’t testify and so we don’t really know, but what we do know is --
William J. Brennan, Jr.: Do you think--
Edwin D. Wolf: What the evidence says on the record.
William J. Brennan, Jr.: Do you think the Mayor Rizzo ought to have a chance to testify before an injunction is entered against him?
Edwin D. Wolf: Absolutely, and I think the Court of Appeals also made that clear.
William J. Brennan, Jr.: But the injunction was directed to issue against him.
Edwin D. Wolf: Well, I think the Court of Appeals began its discussion of remedy by saying it is for the District Court to determine the precise nature of the relief. It did, however, suggest that prospective relief is appropriate.
William J. Brennan, Jr.: You say then that without further proceedings an injunction should not issue against Mayor Rizzo.
Edwin D. Wolf: Yes, that would be my position but, on the other hand, I think as--
Warren E. Burger: But it isn’t the Court of Appeals’ position, is it?
Edwin D. Wolf: Well, the Courts of Appeals, I think, was speaking to the proposition stated by Mr. Justice White, in most recently in Alexander versus Louisiana, quoting Louisiana versus United States with regard to the obligation of a Federal Court not only to declare racial discrimination when it sees it but also to grant effective relief to see that its effects are eliminated and that it does not recur in the future. That is the question that will be before the District Court and I cannot tell you right now whether I think an injunction should issue against Mayor Rizzo or if it should-- what it term should be.
Byron R. White: Well, I thought the Court of Appeals rather emphasized the fact that the Deputy Mayor remains the same person?
Edwin D. Wolf: Well, the Court of Appeals said in Footnote 21 in page 49 of the petition for certiorari, which is the point that I was just making, nevertheless, on this record Mr. Zecca continues as a Deputy Mayor and, since this Court finds that plaintiffs have shown on this record discrimination in regard to the present panel, the Federal Courts must assure that the appointment of a 1973 panel is free from taint and I think that in this whole discussion of remedy, which appears really on one paragraph on pages 48 and 49 of the petition, that there is an emphasis on the fact that they’re dealing with a record. For example, the last sentence in Footnote 21 says also “we repeat that the defendant Mayor testified and the Court passes no personal judgment on him.”
Byron R. White: Well, you suggest in any event we read the Court of Appeals opinion as though it did not direct the District Court to issue an injunction, but gives the Mayor?
Edwin D. Wolf: I think that’s true. I would, as a practical matter, I would take that position on remand.
Byron R. White: And that if the mayor did absolutely nothing after-- on remand, an injunction should not issue until the other side noticed some further proceedings.
Edwin D. Wolf: I’m not sure that I-- the Mayor has already appointed the 1973 panel.
Byron R. White: Yes, but the Mayor-- but with respect to whether an injunction should issue against him or not, the burden is not on the Mayor to go in and have some injunction vacated?
Edwin D. Wolf: No, and that’s one of the problems with this case. There is no order of the District Court to review. There is a suggestion of some of the considerations that the District Court should keep in mind when it comes to entering an order.
Byron R. White: So you-- I taken then, you really-- it sounds to me as though you would really be satisfied if whatever part of this judgment was declaratory is affirmed?
Edwin D. Wolf: Well, I think that I would not read the --
Byron R. White: With respect to the Mayor.
Edwin D. Wolf: I think that the appropriate disposition of this case, as far as I’m concerned, is to remand it to the District Court for further proceedings to determine the precise nature of the relief to which plaintiffs are entitled.
Byron R. White: Do you think there’s still the case of controversy then?
Edwin D. Wolf: Oh, yes.
Byron R. White: Between Mayor Rizzo and the plaintiffs?
Edwin D. Wolf: Oh, yes, there is definitely a case in controversy. Of course, the-- as cases go up on appeal, the underlying facts change and the city government went on.
Byron R. White: Yes.
Edwin D. Wolf: We initially sought to enjoin any action by the panel, but we were denied that relief and the panel did act. It did submit names to the Mayor. The Mayor did appoint members to the School Board for a six-year term and they are presently sitting.
Byron R. White: I suppose that if this suit were brought -- had been brought for the first time now, after a new Mayor had been elected, and all you attack was the activities of Mayor Tate and introduce no more evidence and purport introduced no more evidence than you introduced in this case, you might have some trouble about having a case of controversy?
Edwin D. Wolf: No, because there are people sitting on the School Board as a result of the activities of a 1971 panel and, like in Turner versus Fouche on remand, the remedy is to remove them.
Byron R. White: That isn’t what you-- you aren’t suggesting that the School Board members be removed, are you?
Edwin D. Wolf: That is a possible remedy on remand, and the Court of Appeals, again, said in its amendment to the opinion which was filed in February at our request on remand, the District Court-- this is on page 53 of the petition for certiorari, the District Court should consider the continuing effectiveness of appointments to the Board made after August 1971 on the basis of all the facts which may be developed at the hearing on such remand. Now, it’s entirely possible that the District Court, in its exercise of equitable discretion, could conclude that it will not remove these members of the School Board for one reason or another. On the other hand, it clearly is open to it to do so, and by analogy to Turner versus Fouche where the order entered by the District Court on remand was in fact to remove the School Board members who had been appointed as a result of the unconstitutional process, that would be a possible remedy here and I think that, as far as my clients are concerned, if we are successful here and if the case is remanded to the District Court for the entry of an order, we will conduct some discovery and we will take testimony, and then we will have to decide, as a matter of the public interest, what remedy we desire to seek.
William H. Rehnquist: Mr. Wolf, supposing that after the 1976 Presidential election, whoever is then President Elect is asked whether he plans to appoint a Catholic to the Cabinet and his response is “no, I don’t. I didn’t’ get any support from Catholics in this election and I really have no intention of considering them for a Cabinet Post.” Would you think then that a representative group of Catholics could go into some Federal Court and under the due-- the equal protection component of the Due Process Clause of the Fifth Amendment and get some sort of an injunction at least requiring him to consider Catholics?
Edwin D. Wolf: Well, I think that you’re asking two questions there. One is, whether they would have a right to attempt to prove that Catholics were excluded at priori from consideration and, second--
William H. Rehnquist: Well, I give you--
Edwin D. Wolf: -- whether they would succeed.
William H. Rehnquist: By hypothesis, I give you the fact that the President Elect himself states that they are excluded a priori.
Edwin D. Wolf: Well, I suspect that with regard to a Presidential appointment to the Cabinet that the President would introduce or at least there would be argument regarding the confidential personal nature of the relationship between the President and a Cabinet member regarding the political nature of the appointment, that is, that the appointee is to carryout the President’s policy, and that becomes relevant as a matter of rebutting the prima facie case. If you’re asking me whether a President or any other appointing authority, having made that statement, offers no defense or no explanation, whether that would constitute a violation of either the Fifth or Fourteenth Amendment’s Equal Protection Clause, I would say, yes and I would say that relief could be granted. But I think, as I said, that the issue in this case and in that case would be not the right and not the power of the Federal Court, but whether the plaintiffs made out their case and that goes to the simple legal question of what constitutes a prima facie case of racial discrimination and what constitutes an adequate rebuttal to a prima facie case of racial discrimination.
Byron R. White: Well is this different-- would it be different if the Mayor of Philadelphia announced that he just wasn’t considering any members of a particular political party for a position on the School Board?
Edwin D. Wolf: No, I don’t think that the Equal Protection Clause protects members of a political party as opposed to another. After all, the Fourteenth Amendment says-- talks about race.
Byron R. White: Well, it talks about equal protection, but you should -- you may discriminate against somebody, the Mayor may discriminate against somebody on the grounds of his political beliefs?
Edwin D. Wolf: I think that’s right, but I don’t really think that that was what was intended to be covered by the Fourteenth Amendment.
Potter Stewart: And that gets not only in the equal protection area, but the first Amendment area. Justice White’s--
Edwin D. Wolf: That’s right.
Potter Stewart: Justice White’s question, and yet you arguendo at least concede the validity of that sort of discrimination, do you?
Edwin D. Wolf: Well I think that, first of all, it’s really not involved in this case. It’s a very extreme--
Potter Stewart: Well, it may be. In analyzing this case, it may well be.
Edwin D. Wolf: I think that the Equal Protection Clause would apply and I think, again, in that situation what you have is an overwhelming defense, overwhelming explanation. That is, we’re in a political situation. We’re making political appointments and this person is not of the same political party as I am and, therefore, that’s all the reason in the world not to appoint him.
Potter Stewart: And what if the political party were the Lily White Party?
Edwin D. Wolf: Well, I think that you begin to get into Mr. Justice Powell’s word of pre-textual.
Potter Stewart: No, he went open and nothing pre-texual, the only thing undercover about it--
Edwin D. Wolf: No, what I mean is that you--
Potter Stewart: The political party would be an all-White party.
Edwin D. Wolf: What I mean is that you begin to get to the question of whether saying that he is not going to appoint any members of that political party is a pre-text for not appointing any Blacks and if you find that it’s a pre-text, then I think that it is subject to the Fourteenth Amendment or the Fifth Amendment.
Warren E. Burger: Well, to pursue that line for a moment even though it may take us quite far, suppose the Mayor having-- a Mayor, having been elected, has an analysis made of the precincts and wards from which his support came and he announced that since he only had 10% support in the Negro-voting districts of the city he was going to appoint only 10% Negros, not exceeding 10% of the panel, the Nominating Panel. Now, that’s a political decision, isn’t it?
Edwin D. Wolf: That’s right. I think that that would not be valid. I think it would not be valid because it is an a priori limitation, that is exclusion--
Warren E. Burger: How do you distinguish it--
Edwin D. Wolf: From consideration of members of a particular race.
Warren E. Burger: How do you distinguish it from the response you gave to Mr. Justice Stewart? It’s a decision based on political support. Says he, “I am going to have people appointed to-- within my appointing power, who have supported me.”
Edwin D. Wolf: Well, I think that’s a tough case. I think it’s a lot tougher than the one we have here, and I think that I --
Warren E. Burger: But does it not suggest something about the difficulty of having judges make these philosophical analysis?
Edwin D. Wolf: Oh, it is no question that the-- that determining whether a case has been made out is always a difficult one and the thing that you have to look at is-- under the law, is first of all, whether the plaintiffs have presented evidence which, if unrebutted, would establish a case of discrimination and, second, whether the defendant has brought forth evidence in mitigation. The real problem with this case, frankly, I think is that the District Court said on a couple of occasions, “remember, if the plaintiffs bring forth a prima facie case, you’ve got to rebut it” and it was only after the conclusion of plaintiffs’ case, as a matter of fact the following day, that defendants indicated that they did want to put on some testimony, and we did it about a week later. But, I think that, here, there really wasn’t the kind of political evidence that the two hypothetical situations you’ve given me would suggest. I think the Mayor could have come in and said “Well, I’m only going to put on this panel people who supported me in elections,” but he didn’t say that and I think that if he had, we might have had a more difficult case.
Thurgood Marshall: Mr. Wolf, what worries me is, up until just a few minutes ago, I understood you were not after the School Board members at all.
Edwin D. Wolf: That’s right.
Thurgood Marshall: And now, you are.
Edwin D. Wolf: No, I’m only after the panel members. I’m only saying that the --
Thurgood Marshall: I thought you said when you went back to the lower Court.
Edwin D. Wolf: Oh, that’s as a matter of relief, Mr. Justice Marshall, only a question of what relief --
Thurgood Marshall: Isn’t that matter before us?
Edwin D. Wolf: Well, I don’t think so because the question of relief is always a matter--
Thurgood Marshall: Well, you want us to move blindly on this?
Edwin D. Wolf: Excuse me?
Thurgood Marshall: was just to ignore what you said?
Edwin D. Wolf: No, I think the case should be sent back because--
Thurgood Marshall: So that you can attack the School Board members.
Edwin D. Wolf: No, because there’s no relief that’s been entered here. There’s no relief. The District Court has not exercised its discretion.
Thurgood Marshall: I understand that, but I understood you to say that when you went back, you more than likely would ask that those people that were put on in 1971 be removed.
Edwin D. Wolf: That’s right and the reason is because the process by which they were appointed violated the constitution and if the process violates the constitution, then under Louisiana versus--
Thurgood Marshall: Then I have to ignore what you said that they aren’t involved, they are?
Edwin D. Wolf: Well, there-- when I said they were not involved, what I said was there is no attack on the racial composition of the School Board. There’s no attack on the School--
Thurgood Marshall: Why do you want them taken off?
Edwin D. Wolf: Because the procedure, the process, whereby they were appointed was constitutionally invalid.
Thurgood Marshall: Even if there were Negroes, they have to go?
Edwin D. Wolf: Even if there were Negroes because the process was unconstitutional. That’s why we have constantly tried to make clear that we are not in any way attacking the actions of the panel. We are only attacking the process whereby the panel was appointed, and we maintain that that was done in a racially discriminatory manner.
Warren E. Burger: Mr. Wolf, let me ask you one final question that you may or may not be in position to respond to. I noticed in Footnote 21 that you referred to on page 49, the Court of Appeals has this statement about the senator. This Court finds that plaintiffs are shown on this record and so forth. I notice in several other places in its opinion it uses the term “finds” or “found.” Now, judges when they use that term, ordinarily mean they’re finding a fact which -- do you consider that an appropriate function for the Court of Appeals?
Edwin D. Wolf: I don’t think they were finding a fact. I think that they were relying on the findings of fact in the Court below with the one exception of Mr. Good’s testimony.
Warren E. Burger: Do you think they were just using this term inadvertently and artfully?
Edwin D. Wolf: Yes, because you also find conclusions of law, I think, or make-- I guess you make conclusions upon as opposed to findings of fact.
Warren E. Burger: Well, when judges use those terms, I think they use them more carefully normally.
Edwin D. Wolf: Well, I think though that the question of whether a particular set of evidence makes out a case of racial discrimination is a conclusion of law, and that kind of conclusion of law is appropriate for a Court of Appeals to draw. Thank you very much.
Warren E. Burger: Very well, Mr. Wolf. Thank you, Gentlemen. The case is submitted.


Earl Warren: Number 422, William Link, Petitioner, versus Wabash Railroad Company. Mr. Darlington.
Jay E. Darlington: May it please the Court. The clerk has informed us of the time of situation and both attorneys are agreeable to divide the -- the remaining 45 minutes or whatever it may (Voice Overlap) --
Earl Warren: You're very kind to do that Mr. Darlington.
Jay E. Darlington: The -- I am here mainly to serve the Court and to answer any questions with no set -- a stereotyped speech to make but if it's agreeable I would like to state what were appealing from what I think the question is and briefly the facts as to how the question arises and what I feel is the applicable law that the petitioner was the plaintiff in a personal injury case in the District Court based upon diversity. I was his attorney there. It was -- and the District Court in the Fall of 1960 dismissed the case in my absence on a court sought motion without any motion for dismissal by opposing counsel and the dismissal was not purportedly based upon Rule 41 (b) of Civil -- of Civil Procedure or upon any local rule. But upon -- and asserted inherent power so-called of the District Court to make the dismissal. And that so-called inherent power was affirmed on appeal by a two-to-three decision. The facts underlying that I think can be very briefly stated. This case was filed in 1954. In the spring of 1955, the defense counsel, my distinguished opponents erred -- filed a motion to dismiss the case for alleged failure of the complaint to state a cause of action. And in the fall of 1955 after six months consideration, the District Court sustained that motion. I appealed from it successfully and the Court of Appeals held the complaint good in order to do -- reinstate it. That meant -- and instantly by opponent's petition for certiorari which took some more time and was denied. So they mandate that back to the District Court in the spring of 1955 but after a delay of a couple of years caused by the defense. Following that in the summer of 1957, there was a trial setting. I moved too far and obtained a continuance; the general continuance with the consent of my opponent. In the summer of 1959, the situation was reversed, it was against that for trial and my opponent moved for continuance to which I consented. Then in the spring of 1960, my opponent filed some additional interrogatories which I answered. And the next step in the case was that late in September of 1960, the District Court, acting under the -- this Local Rule 12 on pretrial which simply says that the Court may hold pretrial conference upon notice to the attorney of the case. It's really a short restatement of Rule 16 of Civil Procedure adds nothing to it. That notice, a mimeograph form of notice, went out to both counsel, I received it. It was set for a 1 p.m. on October 12, Columbus Day, fell on a Wednesday. Beginning Monday morning, I was engaged as the record shows, in preparing urgent papers of an undescribed nature to be filed in the Supreme Court of Indiana -- I was -- at Indianapolis, a 160 miles distance from the seat of this District Court. And the record shows that my opponent conceded that -- that on Tuesday the 11th, I called him on the telephone, told him what I was doing and that I thought I could make that pretrial conference the next afternoon and I expected to be there. It turned out Wednesday forenoon that I couldn't make it. I -- like some lawyers maybe I was (Inaudible) I had -- unable to finish this job, these papers that we're committed to the Supreme Court of -- at Indianapolis. And while they're not described, I think it can be assumed that -- that I was acting in good faith in completing that job but there's no affidavit, no showing to the contrary. At any rate, the -- the record shows that on that forenoon; that Wednesday forenoon, I called the judge of the District Court, and being able to reach and talk to his secretary, I told her that I was still working on papers for the Supreme Court. I couldn't get there that afternoon. I would be there the next afternoon, 24 hours later or the day after that or any day that was convenient for the Court or counsel.
Potter Stewart: At what time on Wednesday afternoon? At what time on --
Jay E. Darlington: The next --
Potter Stewart: At what time --
Jay E. Darlington: (Voice Overlap) --
Potter Stewart: -- on Wednesday afternoon?
Jay E. Darlington: What's that?
Potter Stewart: At what time on Wednesday afternoon was the conference scheduled?
Jay E. Darlington: If Your Honor Please, the -- the -- the pretrial hearing was set for 1 p.m. on Wednesday afternoon.
Potter Stewart: And you telephoned judge's secretary at about what, 11 o'clock in the morning?
Jay E. Darlington: I telephoned -- the record shows I telephoned the secretary about at 10:45 a.m. or -- or thereabouts and asked to speak to the judge but he was on the bench. I talked to her, asked her to please inform the Court also to inform opposing counsel. I told her for I thought the -- he was, and she did that; she performed that task, affirmed it before noon. So -- so by noon of Wednesday, the message had reached His Honor and had reached my opposing counsel by the -- well --
Speaker: Your -- your call was from Indianapolis, was it?
Jay E. Darlington: What's it?
Speaker: Your call was put in from Indianapolis?
Jay E. Darlington: Oh, yes. Yes Your Honor and the -- was not going -- I didn't think it was appropriate to go into detail with the secretary as to the nature or the necessity of the work I was doing. I told her I was preparing for the papers for the Supreme Court of -- of Indiana. Actually they were committed to be filed that day but I didn't go into that. That at any rate, that afternoon after waiting for sometime, the -- before, I -- I don't know why because it was known I couldn't be there but anyway, at 3 p.m. that the matter was called for pretrial conference and a pretrial conference was held ex parte the -- between the District Judge and my opponent that at which my opponent said, "Yes, I had called him the day before", and said, "I thought I could make it, I expect you to be there", and the -- the secretary was called in and related substantially of what I have stated. And then His Honor said to my opposing counsel that -- that -- if I may read one short paragraph, "Under the circumstances, what is your thinking Mr. Bodle?" There was no motion then by my opponent or at any time during that hearing, written or oral to dismiss this case. Mr. Bodle announced this legal doctrine to the Court which was adopted by the District Court, substantially adopted by the Court of Appeals yet the question here is substantial whether the doctrine is right or not, whether its dangerous or not. Rest of it is at the bottom page 13 of the transcript. "Mr. Bodle, I would certainly suggest to the Court that it has an inherent authority to dismiss cases not only under its own local rule concerning prosecution but it has an inherent power without any specific rule by virtue of Federal Rule 83 and the inherent power of the Court to dismiss where the Court fix if necessary under the particular situations not provided for by any specific local rule." Well the -- after some discussion about the -- my being to blame for not being there which is not important. I don't consider I'm one the trial particularly except to say that I never have conceded below that -- that if I did any wrong. I don't think I did -- I think that I did my best but that's not the point. The proceeding ended with this statement; this directive of the District Court. The Court now directs the clerk to enter in order to this effect pursuant to the inherent -- this is page 68, pursuant to the inherent powers of the Court and upon failure of plaintiff's counsel to appear at pretrial which was scheduled for the day and so on, pursuant to notice under Rule of 12. Counsel having failed to give any good and sufficient reason for not appearing at that pretrial, the cause is now dismissed. And we go over to the majority opinion at page 21 and we find the paragraph which I think is embedded in a little confused argument in the opinion if I may say so, but the crux of it is there at the bottom of page 21. If I may I read it, "The plaintiff argues that there was no motion by defendant for a dismissal since the trial court did not base its dismissal on Local Rule 11 or on Rule 41 (b) of Federal Rules Civil Procedure for want of prosecution. No such motion was required." It is quite clear to us that the District Courts have ample authority to regulate their practice in any manner not inconsistent with the Federal Rules so on as provided in Rule 83. This case comes within the purview of that rule. The Court then goes on to say that my argument to the contrary as to sheer sophistry to -- and that the trial court has inherent power to do what? To enforce its rules, orders or procedures. I call attention to procedures; it's a pretty broad loose term and to impose appropriate sanctions for failure to comply. The authorities are all against me the court says. Judge Schnackenberg dissented. He points out that the dismissal was not based upon want of prosecution that as indeed the majority opinion had said, "If it has been the defendant wouldn't have been in the very good position because the defendant had caused two years of delay in the case, much expense to my client and myself by causing that unnecessary appeal to get back in court again." And at the last time the case was set for trial. It was postponed generally at his request to which I consented. I had offered and conveyed to the judge my desire to be there the next afternoon 24 hours later. Now the -- that raises questions which depend not on any federal statute. It does involve the Fifth Amendment if this Court cares to invoke it because if my accusation is going to be correct, I think the plaintiff has been deprived of his property that is his cause of action without the presence of law. I think the Court has the option to reverse on that ground if it thinks the case shouldn't be reversed. I think the Court likewise has the option to bypass the constitutional question and decided on an interpretation of the rules. At least the division of power between the Courts and the extent to which District Courts can go unrestricted by anything definite either in the Rules of Civil Procedure or anything in their own rules just for their inherent power on the spur of the moment. As counsel announced to the Court and this was upheld. Our contention is that the -- that is a dangerous doctrine that if allowed to persist and it will persist as a precedent that unless reversed here that it would make the -- the Rules of Civil Procedure to -- a hollow shelf that no lawyer could rely on. The same would be true of the local rules. You couldn't even rely on the local rules. You'll find in my brief, I quoted that on -- the Court's own Local Rule 7th which says on page 6 of the brief, "Motions to dismiss for summary judgment for a judgment on the pleadings shall be accompanied by a brief and adverse party shall have 15 days to file an answer and so on." In that respect, the protection that was given to me and other parties by that Local Rule, it's greater than is spelled out on Rule 41 (b) did. Now the -- I have studied my opponent's cases as well as I can and particularly the two decisions of this Court that he refers to in the text (Inaudible) Moore's that he refers to and the other cases. Incidentally, Mr. Moore's text is based -- cites only the Wisdom case. The District Court case in Alabama where the -- the dismissal was under Rule 41 (b) and the defendant had made a motion for dismissal. Now, in that case as in many others which counsel cites, there are some dicta, there's some loose language about the inherent powers of courts to dismiss cases and to apply sanctions. And I don't deny the sanctions but how about dismissal, how about final disposal, final judgement that had some serious matter that (Inaudible) -- there is not a single solid holding that I know of by this Court or certainly not by this Court or by any other court except the dicta that I have mentioned which is -- supports this doctrine. And if there were below, it certainly wouldn't bind this Court. That's what this Court seats for. And I haven't time to elaborate. I don't need to elaborate. Just please consider the -- what shape the practice is going to be in and all of the confusion like of uniformity, all the aggrieved parties coming up here for relief the same as I am that should the procedure be tightened up, should that -- or should it be left the way this precedent leaves it.
Earl Warren: Thank you Mr. Darlington. Mr. Bodle.
John Bodle: May it please the Court. The counsel for the petitioner in his brief although not in oral argument today has asserted that there is no power in the Federal District Courts to dismiss actions of their own volition for disobedience of court orders or court settings or court rules. This is not the case. The rule of law is well established to the contrary. We have the cases or some of the more recent cases outlined in our brief at pages 11 through 14. And it's simply indisputable. This Court has recognized in passing that the trial courts still has sua sponte powers to enforce sanctions including dismissal of their own motion. The federal rules have certainly not removed those powers and Federal Rule 83, the situation, the Rule which allows the Court to govern itself in unusual situations where there is no standing rule is applicable here. And of course Rule 41 (b) which talks about motions by defendants for dismissals also contains within itself a reference to other dismissals not provided for herein. The counsel for the petitioner would have the courts strike down these long-recognized and frequently exercised powers. There is nothing new or nothing noble on what was done by the trial court in this case. On behalf of the respondents, we submit that the preservation of this powers of trial court is necessary to the efficient operation of the courts in the scheduling of their procedures and their settings that their application in this case was justified by the facts which I'll consider in a moment. And that this Court accordingly should affirm the dismissal which was granted below and which was approved by the Seventh Circuit. There's no constitutional question here since the basic power to act in the manner in which the trial court did act is well established by the cases. The only possible question is the exercise of discretion by the trial court, was it within its discretion to grant the dismissal sua sponte as it did on -- and was entitled to do so under the particular circumstances of this case. Now, of course any case involving exercise of discretion will stand and fall on its own facts. Nevertheless, we have cited a number of cases in our brief clearly recognizing the propriety of dismissing actions sua sponte for disregard of pretrial settings. I'll now refer to those cases in a moment. We submit that to affirm the result below will be to follow the existing state of the law and will not be part from more effect, the present state of the law in any regard. But then on the other hand, a reversal would have serious consequences and that it would impinge upon the powers of the trial courts to regulate their business which would be most unfortunate view of the continuing congestion problem in our courts. Turning to the facts, I'd like to reexamine very briefly. We have for purposes of this case and action that was filed in March of 1957 since that's when the court -- the trial court got the case back on remand. Now at no time since March 1957 and indeed at no time prior to the first appeal did the plaintiff ever make any move to carry this case forward by the smallest step. There was never a request for a setting. There were never any interrogatories spelled. There was never any action taken by the plaintiff on the record in this case to move the case along. Now two years after the remand in the spring of 1959, and this is the point which my opponent omits from his brief and from his argument today. The trial court brought the matter up of its own volition for possible dismissal for failure to prosecute under its one rule, under the 20-year rule. After keeping that matter under advisement for a couple of months, the Court did decide to leave the case on the docket which I certainly think and submit to the Court shows that the trial judge was not dead-set against this case and was not determined to get rid of the case. There have been absolutely no activity for two years and still he let us stay on the docket. Now another year and four months went by and still there was no action whatsoever by the plaintiff. Finally, in October of 1960 or actually at the end of September 1960, the trial court sent out notices of the pretrial. This was done pursuant to a valid local rule based upon Federal Rule 16 and accordingly, as this Court said many years ago in Weil versus Neary having any force and effect of law. Nothing happened and until about two hours before the pretrial when this telephone call came from Indianapolis. Plaintiff's counsel talking to the secretary said in the fact that he was staying on in Indianapolis to take care of some other unspecified business and an unrelated manner -- matter. Now it's obvious I submit that on these facts, petitioner's counsel was not the innocent victim of some unforeseen circumstance created by someone else which prevented his attendance. That is an imaginative version but it will not fit within the framework. We -- all of us have many different cases to work on but we -- all of us, as officers of the Court or allegiance to the Court and to its trial settings. The trial courts and not trial counsel are in charge of the trial dockets and trial schedules. There's no contention here by the petitioner that the Court was obligated to grant its continuance. And of course only the trial court knew when its affairs would again permit the matter to be brought on for pretrial. The petitioner's counsel is not entitled to bargain with the Court by telephone to say, "Well I -- I just can't make it today, I've got something more important on. Now, I'll just show up in the next day or two and we can take care of it then.
Hugo L. Black: Does the record show whether counsel for the defendant was there when the motion was spread -- when case was dismissed?
John Bodle: Counsel for defendant, yes Mr. Justice Black.
Hugo L. Black: I'ts in the record --
John Bodle: I was that counsel. I was present at the time the dismissal was entered.
Hugo L. Black: Does the record show that?
John Bodle: Yes sir, I believe the portions that Mr. Darlington read --
Hugo L. Black: I thought he'd said --
John Bodle: -- showed that.
Hugo L. Black: -- that was dismissed by the Court on its own motion --
John Bodle: Well, that's true.
Hugo L. Black: -- put on this motion.
John Bodle: It was dismissed by the Court of his own motion.
Hugo L. Black: And did you -- this statement that he makes that he had talked to you the day before.
John Bodle: He called me on the telephone. You see, as also appears in the record. I had noticed the deposition of his plaintiff and the reason for his phone call and I think this was in the record, I wouldn't say it, is that he was calling to tell me that he wasn't going to produce his plaintiff and he wasn't going to be there at the deposition but that he didn't tell me to go to the pretrial.
Hugo L. Black: Does the record show why you did not move to dismiss it?
John Bodle: Your Honor, the fact is --
Hugo L. Black: (Voice Overlap) --
John Bodle: -- that is that I had a motion and I never had the reason or the opportunity to present because the Court made it very clear that it felt there been on the front to its processes after this long delay by the plaintiff showing complete indifference to his cause of action. And the -- the Court moved forward of its own motion. So, there's no need for me to present a 37 (d) motion.
William O. Douglas: Was this the same judges as in the other Darlington case?
John Bodle: Well, you mean the Darlington versus Studebaker-Packard case? No Your Honor, that's Judge Robert Grant. This is not the same judge.
Tom C. Clark: (Inaudible)
John Bodle: This is Judge Swygert who is now on the Court of Appeals for Seventh Circuit.
Tom C. Clark: When did he call -- when did he call you about the deposition with reference to the dismissal, I mean the day before it?
John Bodle: Well, it was the day before the pretrial.
Tom C. Clark: How far is it from Indianapolis, the District -- was this judge seating in Hammond?
John Bodle: The judge was seating in Hammond Mr. Justice Clark. It's approximately 160 or 165 miles away.
William J. Brennan, Jr.: Well do I understand -- how long -- how much of a notice are you setting on that day of the pretrial that each of you had?
John Bodle: The notice was sent out as the record shows on September 30th --
William J. Brennan, Jr.: On this setting?
John Bodle: -- and was timely received through the mails.
William J. Brennan, Jr.: In this date of the pretrial was what date?
John Bodle: October 12th.
William J. Brennan, Jr.: October 12? So that's about 10-12 days notice?
John Bodle: Yes, Your Honor.
William J. Brennan, Jr.: Now do I understand that the -- you and the counsel for the petitioner had a conversation on the afternoon of the 11th?
John Bodle: Afternoon or evening of the 11th, I have forgotten when it was, the record --
William J. Brennan, Jr.: Or many --
John Bodle: -- may show.
William J. Brennan, Jr.: -- that conversation was if he would not produce the plaintiff for the deposition but that he would be at the pretrial the following day?
John Bodle: That was the gist of the conversation.
William J. Brennan, Jr.: Well when did you first learn that he would not attend the pretrial?
John Bodle: When I was in the Gary, at the Office of the attorneys where the deposition of the plaintiff was to have taken place. I received a phone call from the judge's secretary subsequent to the time that she had had this telephone call from Mr. Darlington.
William J. Brennan, Jr.: But you did not hear it directly from Mr. Darlington?
John Bodle: I never had any direct correspondence with or any phone calls from Mr. Darlington about that note sir.
William J. Brennan, Jr.: So you just went to the pretrial (Voice Overlap) --
John Bodle: I went to the pretrial at the notice of time. Mr. Darlington was not there and the Court informed me again of what had happened and said, "Let's wait a while and see whether he comes", and of course he did not.
Hugo L. Black: Does the record show whether any effort was made to contact the plaintiff himself before his case was dismissed?
John Bodle: I'm quite sure that the record does not show any such efforts Your Honor. And I would like to reply to the fact that there is no need to do that because of two things. First of all, we're all acquainted with the (Inaudible) clause of agency and of attorney and client and in -- and that the inaction of attorney is attributable to his client. But secondly, I think that application of that rule is entirely just in this case because if -- a perfectly reasonable inference from the long delay and long inaction, the plaintiff never once tried and move his case ahead and if he treasured the case and thought it was valid and valuable I think he would've done so and I submit to the Court that the --
Speaker: Could you summarize the allegation to the complaint, I don't find them in the record.
John Bodle: The -- I have had stated them just generally in my brief, "The automobile driven by the plaintiff ran into the side of a train of the Wabash Railroad." I think it hit about 53 cars back in the engine or some such figure. The --
William O. Douglas: It's not -- not an FELA --
John Bodle: Yes sir.
William O. Douglas: -- case?
John Bodle: Oh no, this is a --
Speaker: (Inaudible)
John Bodle: Just a railroad crossing case Your Honor. Mr. Justice Douglas where the plaintiff was driving a car down the road and didn't stop and ran into the train.
Tom C. Clark: I don't quite understand that deposition yet I'm sorry, a little rude, yes.
John Bodle: Well, I have sent a notice --
Tom C. Clark: (Inaudible)
John Bodle: -- to the plaintiff.
Tom C. Clark: -- of the plaintiff?
John Bodle: Yes, sir.
Hugo L. Black: The case has been pending four or five years, isn't it?
John Bodle: Yes, it had You Honor. This is not the first effort that had been made on those lines.
Hugo L. Black: Who told you that the plaintiff would not to be present to file that?
John Bodle: Yes, Your Honor.
Hugo L. Black: Do you live in Gary?
John Bodle: No, sir. I live in Lafayette, Indiana. I travel about 110 miles to Hammond for the pretrial.
Earl Warren: Mr. Bodle, I understood Mr. Darlington to -- to say that the last continuance in this case that had come about by at your request and I didn't hear you mention anything that in reciting the facts.
John Bodle: Well, I didn't mean to cross over but he's already mentioned it, let me go back to it. In the spring of 1959, the trial court had the matter of -- of its own volition to consider dismissing for his this lack of diligence. On the same day that he decided to keep the case on the docket, he made this trial setting.
Earl Warren: Made what?
John Bodle: He made the trial setting at that same time.
Earl Warren: Yes.
John Bodle: It happened to be a very bad time. The record does not show it but of course in asking for a continuance, we're not asking that never be reset but it was a very immediate thing for us in a very bad time and it was -- although the volition came from us, it was instantly agreed in or agreed to by the plaintiff. And then they --
Earl Warren: But it was made at your request.
John Bodle: It was made at my or not mine personally but --
Earl Warren: Yes.
John Bodle: -- on our side of the case and consented to by plaintiff.
Earl Warren: And the next action was a dismissal.
John Bodle: Well, in the meantime we had filed some additional interrogatories which is on the record and we've done some other the things that don't appear in the record but the last action on the record where the interrogatories which we filed to update the information we got by our original set of interrogatories some years early.
William J. Brennan, Jr.: But when was the pretrial notice?
John Bodle: Pretrial was noticed September 30th, 1960.
William J. Brennan, Jr.: Well that -- that -- that was nothing, I take it in which either of you had any part that was --
John Bodle: This was done by the Court.
William J. Brennan, Jr.: By the Court?
John Bodle: Yes, Your Honor.
William J. Brennan, Jr.: Of -- whatever the processes are in the clerk's office. The clerk's office sent out the notice of pretrial, does it?
John Bodle: That's correct Your Honor. The judge makes up his pretrial docket as --
William J. Brennan, Jr.: And the dismissal then --
John Bodle: -- the Court sent out the notice.
William J. Brennan, Jr.: -- was not the last they intended, maybe the last thing that happened. But after your consent to the continuance, your adversary sent the continuance. Then there was action by the Court for notice of pretrial, is that it?
John Bodle: Yes, sir. That -- that's right. That's right.
Earl Warren: Would you feel that if you had been absent that day because of some other business and the judgement unjustified in dismissing the complaint against you on the ground that you passed for the last continuance then did not show up for this pretrial?
John Bodle: Well no, he didn't ask for the last continuance.
Earl Warren: No, I say you did.
John Bodle: Yes.
Earl Warren: Now, suppose you had been the one who didn't show up for the pretrial and the judge had said, "Well, this man asked for continuance, some time ago we gave it to him now he isn't here today so I'm goi -- I'm going to -- we'll take some (Inaudible) Of course he wouldn't dismiss it, no but --
John Bodle: Well, Your Honor, I submit that --
Earl Warren: Striking defense --
John Bodle: -- it doesn't matter --
Earl Warren: -- striking defense is just the fact --
John Bodle: Striking a defense --
Earl Warren: Isn't that would've been --
John Bodle: -- entering a default judgment, this would've been perfectly within the powers of the Court.
Earl Warren: Alright.
Hugo L. Black: It would've been --
John Bodle: And --
Hugo L. Black: -- within the power but was that in the problem?
John Bodle: No, sir. You then must look at the surrounding circumstances and the fact that although the Court had allowed the case after a two year delay to stay on the docket. Plaintiff had done nothing further and had evidence to complete, disregard for his claim. And I submit that the lack of importance which plaintiff's counsel attached to it was merely a reflection of the plaintiff's own attitude because trial orders as we know as a practical matter you don't and you can't let a case drag that way if your client is interested and it --
Hugo L. Black: Would the court --
John Bodle: -- just doesn't happen.
Hugo L. Black: -- have power to impose the punishment on the lawyer instead of the plaintiff?
John Bodle: He would have that power Your Honor if he wanted to adopt theory of contempt. It seems to me that that might be somewhat harsh on the counsel when you consider that what he was doing here probably merely reflected the fact of plaintiff's personal lack of great interest in the case --
Earl Warren: Well, was that still in the (Voice Overlap) --
John Bodle: -- as shown by this long delay.
Hugo L. Black: (Voice Overlap)
John Bodle: This is --
Hugo L. Black: -- in the record.
John Bodle: This is found only -- I suggest to the Court by the fact that he had never taken the least initiative to attempt to move the case forward.
William J. Brennan, Jr.: Aren't you really suggesting that he was holding it over your head in hopes that the railroad would pay substantive settlement?
John Bodle: Yes Your Honor that's exactly what I'm suggesting.
Speaker: You said something about on what's here --
Earl Warren: Well --
Speaker: -- is that a --
Hugo L. Black: The District Court's ruling on this?
John Bodle: The District Court has a one year rule permitting dismissal where a case has been inactive for that amount of time. Incidentally, of course that's only one type of lack of prosecution, a failure to comply with the border or a setting is a pacific type of failure to prosecute which we had involved here.
William J. Brennan, Jr.: Incidentally under the Federal Rules, if you have followed the motion route on his none appearance, would there have been any requirement under the rule that you served a notice of motion (Voice Overlap) --
John Bodle: A motion which originates with the defendant, of course I would've had to file a motion and notice of that would've gone to the party. But here where the trial court moves sua sponte it has already exercised its discretion and it knew from the telephone conversation of counsel of the secretary where he alleged the facts to be and the door of the trial court was opened under the Rule 60 (b). If the counsel for petitioner felt that he had not explained all the facts and that he had meritorious facts to present that would have made the trial court exercise its discretion in the opposite manner --
William J. Brennan, Jr.: Well what I'm getting at is --
John Bodle: -- he could've --
William J. Brennan, Jr.: I think you know that you had a motion --
John Bodle: Which I had --
William J. Brennan, Jr.: You did not --
John Bodle: -- rushed out and did not file.
William J. Brennan, Jr.: Did not file but had you filed it and Judge Swygert chose to proceed under it, there could not have been any action of dismissal that day, there would've had to be a service of the motion on your adversary.
John Bodle: That's correct. That's right Mr. Justice Brennan. By the same talking, the courts often have power to make a decision and then a notice period is granted and of additional facts are desired to be presented. They are presented as in a case where a third party complaint is filed or counterclaim is filed. The party can be heard and the action set aside. This is the whole purpose of Rule 60 (b).
William J. Brennan, Jr.: And incidentally, was -- was there a motion before Judge Swygert to set aside the order of dismissal?
John Bodle: No, Your Honor and this is the last point I want to make. I think this is of greatest significance because if there had been any facts which the counsel wanted to bring before the trial court to try to explain exactly what is undisclosed alleged work in another city was and he never filed any affidavit or anything about that. He could have and we submit should have in fairness to this Court come before the trial court and said, "Now here are my facts. I want a complete hearing." He had the right to ask for that complete hearing and he failed to do so.
William J. Brennan, Jr.: Was this --
John Bodle: Now he didn't --
William J. Brennan, Jr.: -- a 60 (b) motion?
John Bodle: This would've been a 60 (b) motion, I submit, yes Mr. Justice Brennan. And had he done that then there'd be no worry here as to what actually happened that day in Indianapolis. Now, he didn't have to proceed that way, I don't contend for that for the moment but I do say that if he chooses not to then let him not complain that he had no opportunity for a hearing because the opportunity was there and he elected not to take advantage of it. There had been many cases in which the power to dismiss for failure to appear at a pretrial has been -- has been recognized and applied. The Wisdom versus Texas case, (Inaudible) versus Eastern Airlines where apparently very serious personal injury counter claim was dismissed for that sole reason. The case of the (Voice Overlap) awaits --
William J. Brennan, Jr.: What is it the Court said in the situation -- cover this situation in their rules.
John Bodle: Some of District Courts which may have had more frequent trouble with this have passed pretrial rules which specifically state dismissal may follow forthwith.
William J. Brennan, Jr.: As the rules of this District Court do not well provide.
John Bodle: The rules of this -- this District Court where I don't think this type of disobedience or disregard has been a matter of concern. Had never had occasion to enact any such rule. And that is why of course Federal Rule 83 permitting the Court leeway to act in unusual situations not provided for in the Rule is so important.
Earl Warren: (Inaudible)