William H. Rehnquist: We'll hear argument now in Number 97-1396, Vicky Lopez v. Monterey County. Mr. Avila.
Joaquin G. Avila: Mr. Chief Justice, and may it please the Court: The question before you is whether a voting change is required to be precleared prior to its implementation within a section 5-covered jurisdiction. Section 5, plain language, its purpose, administrative interpretation, and congressional ratification, answer that question in the affirmative. The State of California's statutory construction argument would undermine the broad purpose of section 5 as articulated by this Court.
William H. Rehnquist: Well, but if it's a fair reading of the statute it has weight in its own right, doesn't it, even if it might be contrary to some earlier decisions of this Court.
Joaquin G. Avila: Yes, it would. If there's any ambiguity in the plain language of the statute then you would look at, not only at prior precedent, but also you would look at the structure, the overall structure of the act, that is, the interrelationship between sections 4 and 5, and also you would look at the Attorney General's longstanding interpretation of the act, and the legislative history, which confirms Congress' awareness and ratification of that interpretation. And when you look at the focus of section 5, it is on the covered jurisdiction and whether its voting practices have changed, irrespective of the source of the voting change, but the State's construction would immunize a covered voting change so long as a State enacted a superseding statute, even if that statute was never subjected to preclearance. This construction would create what has been described as a loophole the size of a mountain. Two examples of such loopholes are: 1. Counties could evade section 5 review by securing courtesy legislation at the State level. 2. Section 5 review of redistricting plans would be circumvented. On the other hand, a harmonious interpretation of the statute is achieved by construing section 5 consistently with section 4.
Antonin Scalia: Well, the courtesy legislation point, I mean, I guess you have to acknowledge that a covered county can do some nasty things which it hasn't tried to do before by getting the State to acknowledge State-wide legislation. No?
Joaquin G. Avila: That's correct. The problem, however, is that the State's argument, if adopted by this Court, would result in major loopholes in the section 5 preclearance provision and, in this particular instance, it would immunize the county's voting changes from section 5 review.
Antonin Scalia: If you appeal the plain language, what do you do when the State adopts a general provision of legislation? Does each county within the State that happens to be covered have to clear that piece of legislation? My understanding is that it's simply the State that preclears it and when that happens the county's okay.
Joaquin G. Avila: If... the focus is on the voting changes that occur within the covered jurisdiction. If the State enacts a statute that affects voting changes within our covered jurisdiction, either the State or the county can submit either the... the legislation for section 5 preclearance.
David H. Souter: Why wouldn't-- --But if you're appealing to the plain language, does the plain language suggest that either the State or the county can do it?
Joaquin G. Avila: The plain language of section 5 would suggest that either a covered State or a political subdivision, but, however, the responsibility, the primary responsibility would be on Monterey County to make sure that it submits any voting change, irrespective of its source, when it effectuates a voting change in that covered county.
David H. Souter: I'm not sure I understand you. What plain language is it that you're relying on? Is it the seek to administer?
Joaquin G. Avila: Yes, it is, and the seeks to administer refers, in fact, to the act of administering, not, as the State argues, to an administrative act. Again, the focus is on the covered jurisdiction and whether its voting practices have changed.
Anthony M. Kennedy: Suppose the State has not... pardon me. Suppose the county has no discretion. You shall consolidate the judicial district. Does the State... does the county seek to administer such a provision? It's not asking. Seek means advice. I might seek your advice. The State isn't really... or the, pardon me. The county really isn't asking to do anything. It's being told by the State to do it. Let's assume no discretion. Let's assume the State has no different options.
Joaquin G. Avila: That interpretation, seeks to administer means seeking to implement. As this Court in the first opinion, it stated--
Anthony M. Kennedy: Well, it's not seeking to do anything. It's just ministerially complying with a command from the State.
Joaquin G. Avila: --It is implementing a voting change.
Anthony M. Kennedy: But it's not seeking to in the sense of wanting to, of asking to. It's simply obeying a command from the State.
Joaquin G. Avila: Well, even if it obeys a command from the State, when it effectuates voting change within that covered jurisdiction it has to be submitted for section 5 preclearance, otherwise you're going to create huge exemptions, especially in States that have... that include covered section 5 counties, like North Carolina.
William H. Rehnquist: You say a huge exemption, but it's perfectly arguable from the language that that's what Congress intended.
Joaquin G. Avila: It is a re... it is one interpretation. However, the Attorney General, which is charged with the central enforcement of this section 5, could also have another reasonable interpretation, and that reasonable interpretation in the past has been deferred to by this Court, especially in matters... especially in terms of interpreting its regulations as they apply to matters affecting voting, and in Presley that was the case. In Presley, section 5's broad scope as it relates to election matters was given a very broad scope, and that... and the Attorney General in this case has been interpreted--
William H. Rehnquist: Well, but isn't there an argument on the other side, that here we deal with national and State relations, and that since this does impinge on them, it should probably not get a terribly sweeping interpretation. Here Congress has stepped into the State... the State local business.
Joaquin G. Avila: --Yes, but that balance, that balance between... that delicate balance that was struck by Congress back in 1965 between a State's sovereignty and the Federal interest in eliminating the blight of voting discrimination, that was struck in 1965, and it's been reratified, or ratified three times.
William H. Rehnquist: Precisely, so let's look at the language and not some cry for a very broad interpretation of it.
Joaquin G. Avila: It is not a cry for a very broad interpretation. In fact, what we're seeking to do in this case is just merely maintain what's been going on since 1965. And that is, when you have the Attorney General reviewing redistricting plans for 1970, 1980, and 1990 from North Carolina, New York, and California, which are States that contain covered counties, when you look at that, and you look at the Congressional Record that's cited in our briefs, you find that in fact in the 1982 reenactment of the Voting Rights Act you find explicit references in the Senate report that say, while... quote, while North Carolina as a State is not subject to section 5, the legislation in question affected North Carolina counties which are covered, and therefore it should have been precleared. And when you look at another page reference, at page 14 in that Senate report, it explicitly refers to letters of objection, which they found to be compelling evidence for reenacting section 5, and one of those letters of objection on page 11 of that Senate report is the 1981 redistricting plan for North Carolina. So we have this history of administrative interpretation and this history of congressional ratification of that interpretation, and so when we... and in addition to that, when you look at the overall structure of the act and the interrelationship between section... sections 5 and section 4, we find even more compelling reasons for maintaining the status quo. In Katzenbach, this Court stressed the interrelationships between sections 4 and 5, and stated that section 5 was designed to march in lockstep with section 4. In Katzenbach and Gaston County, this Court approved section 4's statutory framework which suspended State literacy laws in section 5-covered counties, even though the State itself was not a designated jurisdiction. In other words, all literacy tests that were suspended in the covered counties were products of State law.
David H. Souter: Well, one of your arguments is the... what... the risk of what you refer to as the courtesy legislation, that in fact if State law itself is a means to avoid section 5, the usual State capitol log-rolling will simply mean that the counties will get the legislature to enact what they want. Is it an answer to that to say that a line should be drawn between legislation which affects only a covered county and general legislation which in fact affects every county in the State, which I understand is the case here? Is the risk sufficiently reduced in the case of bona fide State-wide legislation so that we should dismiss... in a case like this we should dismiss the concerns about courtesy legislation?
Joaquin G. Avila: Yes, because in fact the State of California has a choice here in enacting State legislation. When we look at the 1979 State statute we find that California in fact directed its legislative effort towards one county. The statute specifically mentions Monterey County.
Speaker: Well, there's two things there. Justice Souter can certainly protect his own question. The premise of his question was that there was State legislation which applied to more counties than Monterey, and he said, would that be a difference. And then you say, well, this 1979 statute applied only to Monterey. That doesn't really quite answer his question as a principle of law.
Joaquin G. Avila: Yes.
Speaker: Why don't you answer the question, first as to whether or not his suggestion about the principle is accurate, then you can say whether or not the principle applies here.
Joaquin G. Avila: The principle of law is that when you have a State-wide statute that has... that affects voting changes throughout the State, and four of those counties in California are subject to section 5, those State statutes would have to be submitted for section 5 preclearance.
Speaker: Well, but that's the issue.
Joaquin G. Avila: Yes.
Speaker: I mean, that's the issue, and one of your reasons for saying that they must be is that unless the general legislation is so submitted with respect to those counties, legislation at the State level will simply be used as a cover for what in fact is local discriminatory efforts.
Joaquin G. Avila: That's correct.
Speaker: My suggestion was that perhaps if you have a genuine, bona fide legislative act intended to cover the whole State that really does cover the whole State, that you don't have that concern, and why isn't... why would you have that concern in the case of State-wide legislation?
Joaquin G. Avila: We would have that concern, if I understand the... your question, because it might still have mischief in other counties. For example, if--
Speaker: You're saying that it might lack intent to discriminate but have the effect.
Joaquin G. Avila: --That's correct, and really that's a question for another proceeding, because here we are still in the enforcement stage of section 5, and that issue would be best addressed when you're reviewing the substantive determination of whether a State-wide statute has a discriminatory purpose, or has a discriminatory effect.
Speaker: Could I ask you to identify what relief you actually want? This has had a complicated history, the justice and municipal courts in Monterey County. What precisely are you now asking? Are you trying to get preclearance of the California State law in 1979 consolidating municipal courts into a single district, or the county ordinance that same year, or both? It isn't clear to me.
Joaquin G. Avila: We are trying to... both. The quick answer is both. We are trying to basically enforce this Court's first opinion, which stated--
Speaker: Well, yes, fine, but I'm trying to pin it down. You want preclearance, in effect, of the 1979 county consolidation ordinance.
Joaquin G. Avila: --That's correct.
Speaker: And the 1979 State law to the same effect.
Joaquin G. Avila: That's correct, and that's the premise of our argument, because--
Speaker: And even if you get some kind of preclearance and review in the meantime, State law has changed again, and has totally eliminated judicial districts.
Joaquin G. Avila: --Well--
Speaker: There's a constitutional amendment now that eliminated Justice of the Peace courts, and there's a State law increasing municipal judges from seven to nine in the county, and that was precleared.
Joaquin G. Avila: --Yes, it was. The 1983 State statute was precleared.
Speaker: Yes.
Joaquin G. Avila: The... what is important, however, is that--
Speaker: So at the bottom line, what are you trying to get?
Joaquin G. Avila: --The bottom line is that the 1983 preclearance merely involved the preclearance that this Court found from... going from three districts, three judicial districts to one county-wide district and in fact, on November 1, 1968, we had nine judicial districts, and the 1983 State statute cannot be read to have precleared those nine districts into three districts, because there's no reference, the Attorney General had no notice--
Speaker: But under State law today it has to be one judicial district, so--
Joaquin G. Avila: --That's correct.
Speaker: --what's available at the end of the line? I just don't see.
Joaquin G. Avila: Well, the basis for that one judicial district is that if that judicial... if that county-wide district is to be precleared, it was only precleared or approved from the change from three judicial districts to--
Speaker: Please tell me what it is at bottom you're trying to get. Are you trying to go back to some separate district system--
Joaquin G. Avila: --No.
Speaker: --or separate elections? What is it you're trying to achieve at the end of the day? Just tell me.
Joaquin G. Avila: At the end of the day we're trying to have an election system that complies with the substantive provisions of section 5.
Speaker: Well, what do you say that is? Is it by separate districts, or a single 1983 judicial district?
Joaquin G. Avila: It could be a combination. That would be a best... a remedy. It could be a combination of districts. It can be a combination of multi-member--
Speaker: There's nothing that you're trying to get, then? Well, I... in concrete terms, I'd like to know what you are seeking.
Joaquin G. Avila: --Well, what we're seeking is... basically what we're looking at is either a districting plan or a multi-member districting plan.
Speaker: Well, State law's eliminated multi-member districts now.
Joaquin G. Avila: But if we have a... but if we have a substantive determination that the at-large election system, or that the conversion from nine districts to six judicial districts is in violation of section 5, then the district court is best able to address that particular question as far as a remedy is concerned.
Speaker: So Monterey County could be excluded from this general State legislation, under your view?
Joaquin G. Avila: Yes, it could. In fact... in fact, Monterey County, the State legislature has enacted State legislation that affected just Monterey County, so we're not asking--
Speaker: I thought it was... I thought it was they had enacted... revised the justice court system for the entire State.
Joaquin G. Avila: --That's correct. Now, we're not... we're not requesting at this point to get back into the justice courts. Basically what we're asking for is to secure compliance with section 5. And what I'd like to do is--
Speaker: Well, but as a... it seems almost like you're avoiding answering. Are you seeking, then, municipal courts, or do you want to go back and have some Justice of the Peace courts, too?
Joaquin G. Avila: --We want to maintain municipal courts.
Speaker: Municipal courts.
Joaquin G. Avila: That's right.
Speaker: And how... and in Monterey County, do you want them elected by judicial districts or in one single district, as State law now provides?
Joaquin G. Avila: We want... one of the remedies that we have sought is the election by judicial districts.
Speaker: Thank you.
Joaquin G. Avila: And I'd like to reserve my remaining time for rebuttal.
Speaker: Very well, Mr. Avila. Mr. Wolfson, we'll hear from you.
Paul R. Q. Wolfson: Mr. Chief Justice, and may it please the Court: Under section 5 of the Voting Rights Act a covered jurisdiction like Monterey County must obtain preclearance of any voting change that it enacts or that it seeks to administer. This change... this case involves voting changes that the county seeks to administer. In every election for county judges, Monterey County oversees and implements the process by which the voters are registered, by which candidates are placed on the ballot, and by which the winners are chosen in the election.
Speaker: Isn't that all pursuant to State law?
Paul R. Q. Wolfson: Well, the county... the county does have to follow State law in some respects, but the county operates the process. I mean, when we refer to seeking to administer the voting change, we read that to mean, it runs the elections by--
Speaker: Even the entire compliance with the law of another sovereign, the State, you know, put up polling places, that is seeking to administer something?
Paul R. Q. Wolfson: --Yes, it is, and in fact I point to two examples. First, I mean, the court looked at a very similar matter in Perkins v. Matthews, where the State of Mississippi before the Voting Rights Act was enacted had shifted from single member districts to at-large elections, and when eventually the city got around to complying with that State law the court said, the change had to be precleared even though the formal enactment by the higher sovereign did not have to be precleared. Another example, actually that's quite relevant here, is, of course, the literacy tests that occasioned the passing of section 5 of the Voting Rights Act. It's quite clear in this case that those tests were mandated by California State law, and they were implemented throughout the State of California at the county level.
Speaker: You're talking about literacy tests in California?
Paul R. Q. Wolfson: Literacy tests were required by California State law. They were struck down by the California supreme court in... I believe in 1970, after section 5 was long enacted. Now, section 5--
Speaker: How does that bear on this case?
Paul R. Q. Wolfson: --My point is that Congress understood that even though there might be a requirement that... a requirement of the State sovereign that the county follow some procedures, that the county might nonetheless not be able to do so under section 5. And in situations like California and North Carolina, a very important example that was ostensibly discussed when the Voting Rights Act was initially enacted, it was clear to Congress that there could be situations where a State... there might be nothing wrong per se with a State law, but the effects that it had in certain jurisdictions did... might have had an effect on minority voting rights--
Speaker: But I don't see how that bears on the issue of seeks to administer.
Paul R. Q. Wolfson: --Seeks to administer means, it runs the election. Now, if I may address Justice Kennedy's question about, doesn't seek to administer indicate some kind of discretion, or some kind of wanting to administer itself and not just following State law. I think that's a... seek to administer is purely temporal, and it should be contrasted with enacts. The way that the statute is written is, if any jurisdiction enacts or seeks to administer something, a voting change, then it has to obtain preclearance. Now, Congress didn't say seeks to enact, because the legislature can formally enact it into State law without obtaining the approval of the Attorney General or the district court. That mean, before it's actually implemented it has to then obtain preclearance.
Speaker: Well, but if you couple enact with seek, enact indicates discretion.
Paul R. Q. Wolfson: I--
Speaker: And here I noticed you told the Chief Justice, well, the county has to do the polling and so forth. The county can't do districts. Districts must be set by the State. Am I right about that?
Paul R. Q. Wolfson: --Well, after the State... I mean, after the State... arguably the State has now required... has now required one district--
Speaker: But even before, the districts were set by the State law, were they not?
Paul R. Q. Wolfson: --No. I would say before that. Certainly at the very beginning, in 1968, my understanding is that the county had discretion about how to draw those districts within the county lines. So I mean, getting back to the point, I think that seeks to administer simply means to begin to run the process by which elections are operated. There's no doubt that, on the ground that counties are the responsible authorities for doing--
Speaker: Well, supposing the State of California says there's going to be a 65-mile speed limit on our highways, and the county police are going to enforce it. Now, is that something the county is seeking to administer? They're told by the State they have to enforce the speed limit?
Paul R. Q. Wolfson: --I think that it would be seeks to administer. I mean, there are... I mean, leave aside the point that the county obviously has great discretion in how it would enforce that, but even so, I think that because the county actually operates the elections, that... you know, that is the process by which it seeks to administer--
Speaker: And how about the speed limit question?
Paul R. Q. Wolfson: --I would say it seeks to administer, because it is foreseen that the... by hypothesis that the county patrol are the ones who enforce the State law in that section. I do want to point out that it's a long been settled administrative practice that covered counties have been required to submit for preclearance.
Speaker: Mr. Wolfson-- --They submit, or the State submits?
Paul R. Q. Wolfson: It has been both. As a matter of--
Speaker: It has been--
Paul R. Q. Wolfson: --Right. As a matter of... no--
Speaker: --both if you're relying upon the text of the statute.
Paul R. Q. Wolfson: --As a matter of convenience--
Speaker: You say shall seek to administer. It says such--
Paul R. Q. Wolfson: --Right.
Speaker: --You know, such State or subdivision.
Paul R. Q. Wolfson: As a matter of convenience, from the point of view of administrative practice, the Attorney General has recognized that when a State law, be it... when a State law that generally affects one or more counties, but say when it affects two or three counties, when a State law passes it is more convenient for the State to submit that for preclearance, it is the burden is ultimately--
Speaker: And that happened here, didn't it, with the one that was precleared?
Paul R. Q. Wolfson: --Yes.
Speaker: It was the State that submitted it, not the county.
Paul R. Q. Wolfson: That's correct. That's correct, it did happen here, and--
Speaker: May I get back to you, because your time is so brief. What do you see as the bottom line, because as I understand it these ordinances cannot be precleared because the county has already admitted that they are--
Paul R. Q. Wolfson: --Right.
Speaker: --They dilute, so these... submit these for preclearance, they won't make the grade, so what happens?
Paul R. Q. Wolfson: I mean, I need to be very cautious here, because the Department of Justice has not seen the factual evidence underpinning this, so--
Speaker: But at least the county at a prior turn admitted in the D.C. district court.
Paul R. Q. Wolfson: --I think that there are... I think that there are a variety of ways, assuming that the county still believed that it couldn't successfully submit for preclearance, and we are not prejudging that question, I do want to emphasize. It might be that they would turn to single member districts instead of at-large voting. There might be other ways in which section 5 concerns could be accommodated, like resident--
Speaker: But then last time around we were told there was no way that they could do anything other than this--
Paul R. Q. Wolfson: --Right.
Speaker: --without violating State law.
Paul R. Q. Wolfson: That's correct, but I think that they're... first of all, in the end, if State law conflicts with section 5 they have to follow section 5, but I'm not sure that that's the only... I'm not sure that dividing the county into single districts is the only option they have.
Speaker: Well, what is it--
Paul R. Q. Wolfson: There could be residency requirements for judges.
Speaker: --But isn't that what the district judge was trying to do for years? He says, come up with something that satisfies both Federal and State, and they couldn't.
Paul R. Q. Wolfson: Well, again I have to say, I think the only question here is whether preclearance is required. The Department of Justice--
Speaker: Yes, but you want to look down the road. This thing has been dragging on for years.
Paul R. Q. Wolfson: --I under--
Speaker: Why can't we look at the bottom line and ask what we're talking about? I guess bottom line from your perspective is violate State law and mandate single member districts.
Paul R. Q. Wolfson: --If, but only if, it's determined that the State law would be retrogressive.
Speaker: Why... why--
Paul R. Q. Wolfson: I don't think that single member districts is the only way. There are other options. There may be other options. We have not looked at it, and I cannot--
Speaker: --Well, the district court couldn't come up with any. Mr. Avila couldn't come up with any. What do you have in mind?
Paul R. Q. Wolfson: --Well, there are situations, for example, where a county is... where there's at-large voting but judges are required to reside in different parts of the county, so that that might not violate the elector... the separation of electoral and jurisdictional bases. I don't know whether that's been explored. I don't believe it has, but if that were submitted to us we would certainly examine that to determine--
Speaker: So what is the common sense... suppose California's right, suppose. Look, we don't want, says California, to discriminate against anybody. We're trying to change our judicial system. We don't want 98,000 people called justice judges. We want municipal judges, and there'll be one municipal judge in each county, or four. That's all we're trying to do. Look at it up, down, and sideways. We're not trying to do anything else, no discrimination. Now, California says there should be, if that's true, a fairly simple, efficacious manner of bringing it about. Now, in your opinion, what is that efficacious manner, consistent with the law, if what they say is true, we're not trying to discriminate, we're trying to help our judicial system function better.
Paul R. Q. Wolfson: --I think that there are... I mean, dividing it into districts could be one way. If... that doesn't--
Speaker: How can you divide it into districts if there's only like one municipal judge--
Paul R. Q. Wolfson: --There's 10 judges. There's 10 judges on this municipal court, and so dividing it into districts could be one way of making sure that there's no retrogression and also having... not having a situation where you had before, consolidation where there were 200 people for each judge. You could still have consolidation that would give you the benefits of a more efficient judicial system, but it might not be fully at-large. Thank you.
Speaker: --Thank you, Mr. Wolfson. Mr. Stone, we'll hear from you.
Daniel G. Stone: Mr. Chief Justice, and may it please the Court: The district court's dismissal of this section 5 coverage case was quite correct, and we submit that it should be affirmed by this Court. The--
Speaker: Mr. Stone, I can't help but ask, was the issue of laches explored in the district court this last time around?
Daniel G. Stone: --It was raised in our motion to dismiss as one of the grounds on which the case should be dismissed, but the district court did not reach it, and there were several other issues as well that the court found it unnecessary to reach.
Speaker: I'm having just a little bit of trouble hearing you.
Daniel G. Stone: Oh, I'm sorry. The question related to whether laches had been raised, and I indicated that it was a ground in our motion to dismiss, but that the district court had not reached it. This case presents a situation that was not contemplated by section 5, and it's a situation for which the preclearance requirement provides no meaningful remedy. Here, if the appellants are correct, then the practical result would be no election for anybody with respect to municipal court judges in the County of Monterey indefinitely. The district court, the coverage court, could enjoin elections under the current system to be sure, but, as everyone now agrees, the county has no authority, no remaining authority to conduct elections pursuant to the 1968 status quo system, and the county has no authority, as Justice O'Connor pointed out, to at this point create new justice court districts, to merge districts, or do anything.
Speaker: Well, it can get that authority from the district court, I assume, if the district court should determine that that is the only way to bring the county in compliance with section 5.
Daniel G. Stone: Well, we suggest--
Speaker: Does the district court prescribe it, even if it's different from what exists elsewhere in the State?
Daniel G. Stone: --We suggest that the district court cannot in a coverage case suspend the constitution of a noncovered jurisdiction, that its remedial power necessarily, even if we're talking about the Washington, D.C. district court upon a finding of--
Speaker: Cannot suspend the constitution of a noncovered jurisdiction within the covered jurisdiction?
Daniel G. Stone: --Correct.
Speaker: Why not? Why can't... I mean, this is what I don't understand on your side of the case. Assume you're right, California is just trying to implement some perfectly reasonable reform of the justice system, but they say that if you implement it in Monterey County it will have a retrogressive effect in respect to discrimination. Now, you think one thing, they think the other. Why wouldn't everyone long ago have gone to the D.C. circuit, where their job is to work this out? I mean, that's what I don't understand why... why this has gone on for several years arguing... I don't get it, in other words. It seems like a typical argument. California has a law which it thinks is absolutely perfect. They think, as applied to Monterey County it has a discriminatory effect. The statute says, when a county administers a law... you know, a covered statute... that may have any change in voting at all, they're supposed to go to the D.C. circuit, so why aren't you in the D.C. circuit?
Daniel G. Stone: Well, your question suggested a host of answers, but initially we now have from the United States Government as amicus a concession that noncovered jurisdictions have no obligation to preclear anything. The State of California is permitted, they say, as--
Speaker: Yes, well, the State has no obligation, they say, to preclear its law even as it affects Monterey County.
Daniel G. Stone: --Correct.
Speaker: But Monterey County still has an ordinance of its own and wants to administer the State law so it can seek preclearance.
Daniel G. Stone: Well, under the United States' theory it is required to seek preclearance, not--
Speaker: Yes.
Daniel G. Stone: --only of its own ordinances but of a State enactment.
Speaker: Uh-huh.
Daniel G. Stone: Or in this case a State constitutional amendment--
Speaker: That's what they say.
Daniel G. Stone: --that it did not initiate it, it has no authority to initiate it, and it can't change--
Speaker: But if they're right, then they'll have to seek preclearance, and if the Federal law prevails, it can prevail over California State law, presumably.
Daniel G. Stone: --Well, if California itself, the State, as a noncovered jurisdiction has no obligation to preclear its enactments, and it does not by concession at this point, then how can the State--
Speaker: But it's free to do so.
Daniel G. Stone: --I'm sorry, Your Honor.
Speaker: It's free to do so if it wants to, isn't it? Couldn't it assume the burden of seeking preclearance?
Daniel G. Stone: Well, I suppose so, but then what does that do to its sovereignty?
Speaker: And it did, it did for the 1983 law. The State did seek preclearance.
Daniel G. Stone: It did, and it has on and off over history. Certainly we concede that a number of States in the position of California that are not themselves covered but that have covered subdivisions have, for whatever reasons, and I suspect they were often political reasons, attempts to reassure before enacting, perhaps to guarantee themselves that they wouldn't be subject to section 2 or constitutional lawsuits, they have willingly attempted to preclear through the U.S. Department of Justice.
Speaker: But let's assume that the 1983 clearance... statute was precleared. It's been conceded that it was. Does that carry you home on the grounds that the 1983 statute permitted the consolidation of the remaining justice courts into the municipal court, and everybody knew that the municipal court was one district then because of the 1979 statute? Do you make any argument that that carries you all the way home, or is that not before us, or--
Daniel G. Stone: Well, the district court indicated that the combination of the preclearance of the State's 1983 statute and of the county's final ordinance merging the last remaining justice courts into the municipal court, which was also precleared, that that combination put an end absolutely to anything other than a county-wide municipal court. Now, I recognize that appellants have raised arguments that because the county was the acting agent in bringing those last two justice courts into the municipal court, that there was still some preclearance requirement. The district court found there was not. But that was all rendered moot when in 1994 the people of the State of California eliminated State-wide, as Justice Scalia pointed out, any justice courts. There are no longer justice courts. The State of California, a sovereign, uncovered State, is reforming a central component of its State government. It's changing the nature of the judiciary in the State by eliminating--
Speaker: --But if the justice courts are turning into municipal courts it doesn't follow that the municipal courts can't sit in districts, so I don't know if the 1994 proposition... I think it was 191... works.
Daniel G. Stone: --Well, in this Court's prior Lopez opinion in 1996 it pointed out that in the State constitutional framework justice courts are for jurisdiction of less than 40,000, and municipal courts are for more than 40,000, and the requirement that a municipal court district have more than 40,000 State residents within it remains after proposition 191, so that a small justice court cannot become, in and of itself, a separate municipal court.
Speaker: Well, what does that add to what you already had from your 1983 statute--
Daniel G. Stone: Well, it doesn't add anything except--
Speaker: --It seems to me you don't need--
Daniel G. Stone: --if one hypothesizes that had the county not willingly merged these last remaining justice courts, then, as the district court found, by operation of law, once justice courts were eliminated, the last two... had they still remained justice courts in Monterey County, they would automatically have been folded into the existing--
Speaker: --But won't they say that still doesn't solve the problem of districting? Okay, so they're municipal court judges. They still want them to sit in districts.
Daniel G. Stone: --Well, it's not a thing they can have, we submit, because the current district is defined by State law, and the State is not a covered jurisdiction.
Speaker: Well, but of course if the Federal law requires it then State law has to give way in Monterey County.
Daniel G. Stone: Well--
Speaker: That's the point.
Daniel G. Stone: --That is the question, and--
Speaker: Well, I mean, what do you think the Supremacy Clause of the Constitution is all about?
Daniel G. Stone: --No, you're absolutely correct, if... if the--
Speaker: I mean, if that is the law... if that is the law, that Federal law requires the election of judges by district in Monterey County, then it doesn't matter that the State law says something else.
Daniel G. Stone: --Well, except that one has to define the Federal law in a way that it can reach and annul State law.
Speaker: Well-- --But that's a statutory argument.
Daniel G. Stone: Correct. The question is the plain meaning of section 2, and we've shown the Court in our briefs--
Speaker: Mr. Stone, could I ask you a question about the conflict with the California law? As I understand the California law, it requires a county-wide district for judicial purposes, for jurisdictional purposes, but does it speak to the question of how the judges will be elected? In other words, would it necessarily conflict with State law if the county had a rule that said the district shall... county-wide... judges have county-wide jurisdiction, but one of the judges must be a resident of a certain part of the county, I mean, divide up the county residentially for voting purposes, something like that, that didn't affect their jurisdiction, would that conflict with State law?
Daniel G. Stone: --Your hypothetical would involve subdistricts for election purposes?
Speaker: Either subdistricts for election purposes or at least for residential... for qualification of the judges to live in a certain neighborhood or something like that.
Daniel G. Stone: Well, I'm not sure what the answer is to a residential requirement if there were county-wide voting for those people.
Speaker: You think there would have to be county-side voting, though?
Daniel G. Stone: Yes. That is a matter of the State constitution, Article VI, section 16.
Speaker: But that does not-- --That applies to all counties?
Daniel G. Stone: Yes. As to all judicial districts, every voter within a judicial district is entitled to vote for every judge of that district.
Speaker: But there are some counties-- --I see. --in California with more than one judicial district.
Daniel G. Stone: Correct, and for that there are not county-wide elections, but there are always district-wide elections. As I understood Justice Stevens' hypothetical, we had a county-wide court with some divisions or residency requirements within. All I'm saying is, whatever the requirements may be, there would still have to be... if the jurisdiction of the municipal court district were county-wide, then every voter within that county would have a right under the State constitution to elect the judges thereof.
Speaker: Mr. Stone, this is not in the record, but someone told me recently that in Los Angeles County the superior court judges and the municipal courts have been combined so that there'll simply be one kind of judge there. Do you know anything about that, and is it State-wide, or would that just be Los Angeles County?
Daniel G. Stone: It's rather a combination. In June of this year the State constitution was amended to permit what's called unification of municipal and superior courts. If the vote taken in a given county shows a majority of both the sitting municipal court judges and the sitting superior court judges in favor of that unification, at that point the municipal court in that county would be abolished, and apparently that's what occurred in Los Angeles County.
Speaker: Mr. Stone, is there... in the original pleadings was there both a section 2 and a section 5 case brought here?
Daniel G. Stone: There was not. There has never been--
Speaker: So this is just a section 5 case.
Daniel G. Stone: --Strictly section 5.
Speaker: Well, is part... I guess the reason I ask this is this. Is part of your argument, or is it implicit in what you're arguing, that the district court would, in fact, have great discretion to fashion a remedy if it found a section 2 violation? It could, for example, say the only way to eliminate the discriminatory effect that I find is to, in effect, to require as a remedial scheme four districts, each electing one judge, as opposed to one district from which four are elected. However, is it implicit in your argument that the judge... that the district court does not have that degree of flexibility under section 5, that under section 5 all it can say is, you are supposed to preclear, you haven't, therefore preclear, and that its remedial discretion, its... the possibility of remedial creativity simply cannot go beyond that kind of yes or no order?
Daniel G. Stone: It could include... I have a couple of answers, but in the section 5 framework, in the coverage case as opposed to an action for declaratory relief in the Washington, D.C. district court--
Speaker: Yes.
Daniel G. Stone: --In the coverage case, all the coverage court can do is determine whether the challenged change is in fact--
Speaker: So that, I take it, is the reason that you're saying that there isn't anything... I think you're saying that the court cannot practically do... it cannot practically order the kind of remedy that the petitioners would like.
Daniel G. Stone: --That's correct. If the petitioners were... if the county were required to go to Washington, D.C. and preclear, or attempt to preclear its ordinances, it would be an utterly futile act at this point because the county has no remaining authority to implement those ordinances.
Speaker: Why isn't it... look, I'm missing something, because it just... I thought that there's a statute, and what the statute that I have in front of me says is, whenever a political subdivision of a State... now, Monterey County is a political subdivision, right?
Daniel G. Stone: Yes.
Speaker: And it's a covered subdivision, right?
Daniel G. Stone: Yes, correct.
Speaker: So it says, whenever a political subdivision that is covered shall seek to administer any voting qualification or prerequisite to voting. Now, I take it, in addition to all those ordinances the new State law, maybe with superior counties, everything else, is a prerequisite to voting. I... there's no argument about that, is there? Or maybe there is--
Daniel G. Stone: Well--
Speaker: --But I mean, at least I didn't see one here.
Daniel G. Stone: --It's certainly an alteration.
Speaker: All right... yes, fine. It says, whenever that happens, what it says the political subdivision is supposed to do is to go to the Attorney General or the D.C. Circuit and get it cleared. That's what the copy, I think, if I'm reading it correctly... so why isn't that the end of this part of the argument? That is, you're in the wrong court. You ought to be in the D.C. Circuit. It should be precleared. Now, it may be you have the best reasons in the world. It may be that they filed 35 years too late. It may be that there's no way to work out a good remedy, other... but all this is for the D.C. Circuit to decide, not for the California court. Now, that, I take it, is their basic argument here. Now, what's the response to that argument?
Daniel G. Stone: Well, as Justice Souter pointed out, in a section 5 coverage case, one of the issues that is before the district court is whether the voting change, the alleged voting change that is challenged, is in fact subject to preclearance in the first place.
Speaker: Now, but I just read you the statute, I take it, that when you read it on its face it seems to be that it is subject to preclearance. Well, that's the very issue here, is it not?
Daniel G. Stone: Precisely.
Speaker: Yes. I mean, that's what this case is about, to say yes or no to that, and if we say yes, then the district court, Federal district court in California has to simply say yes, it's covered, period.
Daniel G. Stone: Correct.
Speaker: Then it will be up to the county, if it wants to implement election of judges at all, to seek preclearance, or the State may, according to the Attorney General, the Solicitor General, the State may do it if it wants.
Daniel G. Stone: So the question is very much focused on the plain meaning of the phrase, seek to administer, and several of your questions to the appellant said so.
Speaker: That's what I was trying to get to.
Daniel G. Stone: If the appellants' interpretation of seek to administer, which is that it encompasses anything and everything, regardless of source, that has any impact within the covered jurisdiction, if that were, that very, very broad interpretation were upheld by this Court, then it would be a direct reversal of Young v. Fordice. In which case, as you'll recall, in Mississippi there was a challenge to Mississippi's implementation of the Federal National Voting Rights Act which very much changed the registration practices within the State, which is a covered State, and this Court said, to the extent that there is no discretion in the covered jurisdiction to make any changes or to select ways in which to implement this, it doesn't require preclearance. It comes from a noncovered source. It--
Speaker: It also came from a Federal source, which was of equal dignity legally with section 5, and that's not what we're dealing with here.
Daniel G. Stone: --No, I certainly concede that we're not in every respect in the same shoes as the Federal Government, but it seems to me for the narrow purposes of analyzing what seeks to administer means we are in the same shoes, in the sense that neither the State of California--
Speaker: Well, I think it's totally different. If Federal law requires something, that is supreme, and obviously the covered jurisdiction has no choice. This is a State law requirement--
Daniel G. Stone: --Over which--
Speaker: --so Federal law can mandate something different.
Daniel G. Stone: --But the covered jurisdiction likewise has no choice with respect to California law when that law does not reserve any discretion within the covered jurisdiction.
Speaker: Well, it has no choice but to obey the order of the Federal court when the Federal court's intervention is sought. In the meantime, it can't hold any elections.
Daniel G. Stone: My point is whether the covered jurisdiction is exercising any kind of discretion. Recall that initially section 5 was designed in conjunction with section 4 to identify... through a statutory formula to identify those jurisdictions, and they were either States or political subdivisions--
Speaker: The statute doesn't speak of discretion. It says, administer, so our question is, do we read some kind of discretion in there. It says--
Daniel G. Stone: --Well, we--
Speaker: --whether it seeks to administer.
Daniel G. Stone: --And we now have a concession from the appellants that the term, seeks to administer, can reasonably be used to speak of discretionary administrative acts by a covered jurisdiction. This is in their reply brief. It's the fist time they've said this. Prior to this--
Speaker: Well, but where does that get you? I mean, of course sometimes when one is seeking to administer something one may exercise discretion in figuring out how to do it. Other times in seeking to administer something one need not. In this particular case, it seems to be nondiscretionary, but I mean, the words, seek to administer, covers both.
Daniel G. Stone: --Well, I suggest that it presents the Court with an ambiguity, that there are two alternative means of interpreting seeks to administer now. As plaintiffs concede, it could be interpreted to focus simply on the administrative acts executive decisions, anything other than the formal promulgations by a covered jurisdiction. Alternatively, it could be interpreted to be broadly to encompass anything and everything that's different, whether imposed from above or not, and because there's an ambiguity--
Speaker: Well, it could be interpreted to mean anything and everything that's different as a result of a decision made at a non-Federal level. That's a possible interpretation.
Daniel G. Stone: --I suppose, but I suggest that that's a distinction that can't be found anywhere in the statute. Certainly Your Honor could suggest it's implied, but the statute talks about covered versus noncovered--
Speaker: Well, it seeks to... it's seeking to administer a State-directed change in election practices. You say that's not covered because it was State-directed.
Daniel G. Stone: --Yes.
Speaker: But one could say that that's... in order to get away from the elephantine loophole, that that's a reasonable reading, because you do have to admit, it's a fairly large loophole if you say any covered jurisdiction doesn't have to change... it doesn't have to get preclearance whenever the State law authorizes it.
Daniel G. Stone: Well, we don't admit it's a loophole, because we think it's fairly strange--
Speaker: No, you don't think it's a loophole, but it's a rather large noncovered area of the statute.
Daniel G. Stone: --Well, it is, but there are, I don't know, what, 40-some-odd noncovered States in the Nation. I mean, if you want to speak of loopholes, obviously the section 5 preclearance requirement has not been imposed by Congress upon everyone.
Speaker: Why have those States that have cleared it in the past in such situations done so?
Daniel G. Stone: Well, I... that would require speculation on my part, Your Honor. I suggest that it may have been political reasons, to show good faith to minority voters within the State, to try to avoid perhaps section 2 or constitutional challenges.
Speaker: Are there many instances in which States have not done so?
Daniel G. Stone: Have not done so?
Speaker: Uh-huh.
Daniel G. Stone: I can't speak to that. The cases deal with those in which the States have done so voluntarily.
Speaker: Do you know of any where they have not done so?
Daniel G. Stone: Well, one of the cases here is the 1979 statute in California, which dictated a municipal court district and all parties concede that was not precleared. The State did not seek preclearance of that and I suspect there are a number of other examples. I'm just not aware of what they might be.
Speaker: You don't... you're not aware that it's a practice in either direction.
Daniel G. Stone: No, I accept the United States representation that it's commonplace for jurisdictions in this situation to voluntarily seek preclearance, but I don't think that gets us anywhere as far as a holding of this Court. As you know, all the Shaw cases and the Lawyer case from Florida and the UJO case from New York all came before the Court in the posture of a constitutional challenge, or a section 2 challenge to redistricting plans, and in reciting the history of the case the Court has pointed out that the States, North Carolina, Florida, New York, voluntarily sought preclearance administratively before finally deciding on a districting plan. But there's no holding that analyzes, as this Court is now asked to do, what the plain meaning of the statute is, whether there's a clear statement by Congress that this section 5 is intended to go beyond the covered jurisdictions, and what the Federalism issues might be if such a--
Speaker: Isn't there administrative discretion in the... was... my impression was that for quite a long time anyway under some of these ordinances Monterey had considerable discretion, say, to set boundaries, which they could have drawn in different ways, and even where there's one district they'd have discretion as to whether to have a residency requirement, for example, as whether not. So if that word administer means, you have to have some discretion, which I don't know if it does or not, but if it does mean that, isn't there a significant amount here? Why not?
Daniel G. Stone: --There was historically, Justice Breyer. There... Government Code section 71040 gave to the counties the discretion to change boundaries as--
Speaker: And now do they have some in respect to, say, imposing residence requirements?
Daniel G. Stone: --No. I think residence requirement is a State requirement, and--
Speaker: But I'm... if they wanted to divide it by, in effect districts, by saying you have to have one of the 10 from this... these blocks, and another of the 10 has to live in a different place, could they do that?
Daniel G. Stone: --I don't know the answer to that. Maybe they could. The State requirement is that everyone who is a justice of that court reside within the court, so if you wanted to parse it even smaller than that, perhaps there is discretion. I don't know.
Speaker: In the counties which do have districts, Los Angeles, for instance... I assume they have districts... do those counties set the district lines, or does the State legislature do that?
Daniel G. Stone: It could be either way, and I'm not sure precisely in the case of Los Angeles. The statute--
Speaker: Are there any counties in the State of California with multiple judicial districts where the counties set the district lines?
Daniel G. Stone: --Yes. Yes. There is statutory discretion given to the counties unless the State acts otherwise, and what's happened here is the State has taken over.
Speaker: So then there would be no, really violation of overall State policy for Monterey to do this by compulsion of a Federal court in the D.C. Circuit--
Daniel G. Stone: To do--
Speaker: --or in compliance with the plan.
Daniel G. Stone: --To divide into subdivisions?
Speaker: In other words, some counties in California do set their own electoral district lines, and therefore it doesn't necessarily contravene State policy to do so in Monterey.
Daniel G. Stone: Well, I submit that it does, not only because in 1972 the State Judicial Council and the Chief Justice indicated that they thought that was the better way for Monterey County to operate, but also because much more recently the State has dictated that there be just one municipal court in Monterey County. So the State policy with respect to this part of its overall judicial system has spoken, and has dictated... all parties are agreed here that the county no longer has any discretion to have a municipal court anything short of county-wide. So my point is that, since we have this ambiguity, then under the cases relating to importance of Federalism, the Gregory v. Ashcroft, the New York v. United States, Will v. Michigan, they say that if there's only an ambiguity, if the most that the plaintiffs can show is an ambiguity, then that falls far short of the requisite clear statement--
Speaker: Can I go back to Justice Kennedy's question for just a moment? The State policy we're talking about of having just one judicial district in the county is a county-specific State policy, not a general State policy, isn't it?
Daniel G. Stone: --Well, it's... with respect to municipal courts--
Speaker: Yes.
Daniel G. Stone: --the statute that has county-wide municipal court in Monterey County is county-specific. There's a superior court system, the next layer up and the one which can now be, at the choice of the counties, unified with municipal courts, that's always been county-wide by dictate of the State.
Speaker: It doesn't seem to me so unusual to say that when a State has a county-specific policy relating to a covered county, that there may be special reason for the State law to bow to the Federal law that applies only to that county.
Daniel G. Stone: The problem the State has with that is that it takes the presumption which attaches with application of section 5... if you're a covered jurisdiction, you're presumed to have had a history of wrongdoing, and you're suspected in the future of making voting changes designed to undermine the voting rights of minority voters.
Speaker: Or having the effect of undermining.
Daniel G. Stone: Or having the effect.
Speaker: Yes, but... that's right, and the State can do that just as readily as the county can.
Daniel G. Stone: But the point is--
Speaker: In fact, more readily, because it's not trying to be careful not to undermine it, and that makes it very sensible to clear the State's plans for what it's effect is in the county.
Daniel G. Stone: --But Justice Scalia, the State has not been identified as a wrongdoer. The preclearance requirement is a remedy for wrongdoing identified by Congress.
Speaker: Right, but once you acknowledge that there need... that there... the only wrongdoing that's relevant is past wrongdoing, that there need not be intentional wrongdoing in enacting the new plan... the new plan may simply have the effect, in good faith and without the intent to discriminate, but it has a bad effect. Once you acknowledge that, I don't see any reason to think that... any reason in policy why the State's plan having that effect shouldn't be cleared just as well as the county's plan having that effect.
Daniel G. Stone: Well, the policy issue goes to the allocation of burdens. If you're a section 5 identified covered county, then it's your burden to go to Washington, D.C. and establish that your... that the voting change that you desire and that you have fashioned... the court uses all kinds of terms like fashioned, adopt, seek to undertake and so on. It all suggests that it's the covered jurisdiction's initiative that leads to this voting change, and they have the burden to show that it isn't a bad thing. Why should the State, which has never been viewed a covered jurisdiction under any--
Speaker: No, but you can't say the State has never been a wrongdoer, because it had the literacy test which was wrongful to the extent that it affected counties in which there was this particular result that occurred in Monterey County, and the State was the source of the wrongdoing.
Daniel G. Stone: --I--
Speaker: So the State is the wrongdoer.
Daniel G. Stone: --I would very much dispute that. This county has less than 1.2 percent of the State of California population. All four covered counties within the State combined have less than 3 percent--
Speaker: No, but was it not a State statute requiring literacy tests that was the wrong that gave rise to the coverage?
Daniel G. Stone: --It was not. The test for coverage is two-pronged. One is the existence of--
Speaker: Right, but half of it was by the State and half was the impact in that county.
Daniel G. Stone: --But the State's literacy test was not a wrong. There were literacy tests across the country at the time the Voting Rights Act was passed. The wrong Congress looked at, and again it was just a formulaic, mechanical wrong, but it was the voter turnout, because Congress recognized that literacy tests were prone to abuse. They had all manner of room for local discretion. So it's not the test. If it were the test, then every State that had a test would be a covered jurisdiction thereafter.
Speaker: Every county in California would be covered.
Daniel G. Stone: And every county in California.
Speaker: No, but it was-- --I don't accept your argument that... you seem to assume that I'm saying the State has to clear it. I don't think the State has to clear it. I think the county has to clear it, and the county is a covered jurisdiction.
Daniel G. Stone: But isn't that anomalous when the county can do nothing to change it, and the county is asked to come and defend it. It may not have the desire to defend it. This particular county may be entirely against the State's new law or new policy. It may not have the financial resources fairly and adequately to defend it, and it comes in there without any power to change it, so you would have... and one needs look no further than this case to see the kind of--
Speaker: Well, it wasn't anomalous. If you go back into history, I take it the history of this was there'd be a lot of places in the south where they vote in a town by district, and say they were 40 percent black and 60 percent white, and then soon as you had to let black people vote, what they did was suddenly switch to a system that was a single district, and now it could be in many of those towns they would have said, well, we won't have it ourselves, and lo and behold you discover the State legislature implementing it throughout the entire State. Of course, the State's a covered jurisdiction. Now, historically that was an evil, wasn't it?
Daniel G. Stone: --Well--
Speaker: No, but in States... I think there are some States where the State is not a covered jurisdiction, and I take it... is that-- --North Carolina. North Carolina I thought was, and I thought that the same problem would exist there, and that that was the history of this.
Daniel G. Stone: --But the question is whether there's any justification, any constitutional justification, I would submit, for assuming wrongdoing on the part of a noncovered State without approving--
Speaker: It wasn't to assume wrongdoing.
Daniel G. Stone: --Well--
Speaker: It was to try to cure the problem in the county.
Daniel G. Stone: --But you have shifted the burdens. If you require a noncovered jurisdiction to come and prove, absent any proof of wrongdoing, you've shifted the burdens in a manner that I suggest is unconstitutional. In Katzenbach this Court pointed out what a very important element it was for Congress surgically to have identified the wrongdoers before imposing the preclearance requirement.
Speaker: Thank you, Mr. Stone.
Daniel G. Stone: Thank you.
Speaker: Mr. Avila, you have 3 minutes remaining.
Joaquin G. Avila: Thank you, Mr. Chief Justice, and may it please the Court: Referring back to a point that was made by Justice Scalia, even a law with a State-wide effect might still have a greater effect on those counties that Congress designated for section 5 purposes. As long as the covered jurisdiction is implementing a change, section 5 applies, and that common sense understanding of the term was reflected in the Court's earlier opinion in this case when, writing for a unanimous Court, Justice O'Connor stated that a section 5-covered jurisdiction must obtain preclearance before "implementing" a voting change. Those were the words used by this Court to describe the operative effect of section 5, and when we look at the administrative practices of the Attorney General in Sheffield, this Court held that the Attorney General's interpretation of section 5 is, quote, persuasive evidence of original understanding. So what we're trying to do in this case is merely maintain what's been going on for the past three decennial redistrictings, and when we look at what... in fact, what the State of California and the county administers at the local level, we know that the county administers the election machinery and the personnel that actually administer the State elections, and in our brief we cite to numerous State statutes in which the State mandates that a particular election occur, and that the county is directed to administer that election.
Speaker: If the 1983 statute was precleared, wasn't that against a background where there was a single district, and why shouldn't that end this case?
Joaquin G. Avila: It does not end the case because when you're talking about reviewing a voting change you're talking about what happened before and what happened after. The 1983 State statute only referred to the conversion from three judicial districts to a single county-wide district. It did not start off with the November 1968 nine judicial district plan, and we do not have the conversion before the Department of Justice or the D.C. court between nine districts--
Speaker: I don't understand. If the 1983 statute provided for a single judicial district, and this has been precleared, getting back to Justice O'Connor's question, what's left?
Joaquin G. Avila: --What's left is the judicial... what's left is the preclearance of nine districts which existed on November 1, 1968, to three districts which existed in 1983. The 1983 State statute only converted three judicial districts into a single county-wide. Whenever you examine voting change, it's examining from what, from what is it being changed from, to what is it being changed to, and that's precisely the point that we're making in this argument. Thank you very much.
William H. Rehnquist: Thank you, Mr. Avila. The case is submitted.


Earl Warren: Number 439, Jackson D. Magenau, Administrator of the Deceased of Norman Ormsbee, Jr., Deceased, Petitioner, versus Aetna Freight Lines, Inc. Mr. Shniderman you may proceed.
Harry L. Shniderman: The jury awarded petitioner $76,400. The trial court refused to set the verdict aside. The Court of Appeals reversed on the ground that the Pennsylvania Workmen's Compensation Act provided the exclusive remedy. In reversing, the Court of Appeals relied on Pennsylvania state practice as to the functions of these reforms by a court and jury in determining whether there was an employment relationship covered by the Compensation Act. This procedure was in conflict with Byrd versus Blue Ridge Rural Electric Cooperative Inc., and therefore we maintain that the jury verdict should be reinstated. The petitioner brought this suit as administrator on behalf of Norman Ormsbee Jr.'s widow and three children. Ormsbee, a young man of 20, had been killed while riding on a truck owned by a man named Fidler. Fidler had leased the truck complete with driver to the respondent. The driver Schroyer had picked up a load of steel and had proceeded on what was to have been a 350-mile journey. Because of a combination of very unusual circumstances, what was to have been a 20-hour trip was protracted for a seven day period, at which time Schroyer had not yet reached his destination. Among other things Schroyer had encountered grave mechanical difficulty with the truck, and so he asked petitioner's decedent, Ormsbee, whom he had casually met in a tavern to accompany him for the balance of the trip in exchange for a promised payment of $25. Now it was contrary to the policy of both, Fidler the lessor, and the respondent to permit anyone to ride on the truck other than the driver. Ormsbee had training as a mechanic, which might have been of help in the event of the feared breakdown of the truck, but the truck crashed about five hours after Ormsbee joined Schroyer and both men were killed. The brakes of the truck were extremely defective. The evidence establishes that this defective condition resulted from the wanton negligence of the respondent. The law of Pennsylvania is that a defendant is liable to a trespasser only for wanton negligence. But if Ormsbee was properly present on the truck, by virtue of the emergency, the respondent would be liable even for ordinary negligence. The respondent vigorously contended that Ormsbee was a mere trespasser. Because of the doubt as to Ormsbee's right to be on the truck, the jury was asked to answer four special interrogatories, as well as to return a general verdict. The jury found that there had been wanton negligence. It also found in answer to interrogatory number one, that Ormsbee was properly present on the truck, which meant that recovery could be had even for ordinary negligence. Thus the jury found in fact that Ormsbee was not a trespasser. Now the precise issues tried were not framed exclusively by the compliant and answer. They were elaborated on both sides at pre-trial, as is pointed out in the record at page 208 A of the trial judge's opinion. Now as a result of this elaboration of the issues, there evolved respondent's alternative affirmative defense, that this cause of action was barred by the Compensation Act. Now this suit is barred by the Pennsylvania Workmen's Compensation Act only if two circumstances are both present. First this suit is not barred unless Ormsbee was the employee of respondent, rather than say of Fidler. Second, even if Ormsbee was the employee of the respondent, this suit would not be barred if the employment was, in the words of the statute, casual and not in the regular course of the respondent's business. Such temporary employees are simply not covered by the Compensation Act. Now the respondent did not seek a jury determination of either of these two questions as to Ormsbee's employment status, although both had to be resolved in its favor in order to establish what it concedes is an affirmative defense. The trial court stated to counsel before submitting interrogatory number one that he was purposely refraining from asking the jury to decide the employee issue, which he considered one for the Court. This is what the trial court stated at page 169 A of the record in commenting on interrogatory number one. You notice there I refrain from saying just what his status is. I don't think it is necessary to have the jury find whether he was employed or not. I think that is a question for the law, we might have to look at that afterwards, it depends on what you think of it.
Speaker: What page is that on?
Harry L. Shniderman: 169 A of the record Mr. Justice. The respondent asked of a judge for a binding instruction, that if the jury found that an emergency existed, which justified Schroyer in hiring an assistant, the verdict must be for the respondent. The respondent thus tried to have the Court bind the jury without instructing the jury to consider or decide whose employee Ormsbee was or whether the employment was in the regular course of the respondent's business. When this request for a binding instruction was refused, the respondent made no effort to obtain an instruction which would have permitted the jury rather than the Court to determine the employment status question. Since this is important it should be stressed that the jury was never asked to consider whether Ormsbee was respondent's employee? Further the respondent made no request that the statutory language, regular course of business ever be presented to the hearing of the jury. Finally, the judge was not asked to present to the jury any language equivalent to regular course of business, such as the language that has been developed in the Pennsylvania decisions and which was quoted by the Court below.
Speaker: Do you agree that under Pennsylvania law these issues were not for the jury?
Harry L. Shniderman: There is support for what was done in this case, yes.
Speaker: Under Pennsylvania law?
Harry L. Shniderman: Under Pennsylvania law.
Speaker: Their claim is here that notwithstanding the Pennsylvania practice (Inaudible)
Harry L. Shniderman: As decided by the Byrd case of the last session of this Court.
Speaker: (Inaudible)
Harry L. Shniderman: Yes.
Charles E. Whittaker: Mr. Shniderman, do you contend that the conclusion as to whether Ormsbee was an employee was for the jury or just the finding of facts from which that conclusion of law would follow?
Harry L. Shniderman: The drawing of the necessary inferences from the facts is a function for the jury, not the conclusion of law, but Your Honor the question of labeling the proper drawing of inferences, which is a jury function, cannot be assumed by the Court by calling it a conclusion of law or a question of law.
Charles E. Whittaker: I understood that here, under interrogatory number one, the Court asked the jury under the -- this follows, under the evidence in this case, do you find that an unforeseen contingency arose which made it reasonably necessary for the protection of the defendant's interests, that the driver Charles Schroyer engaged the decedent Ormsbee to accompany him for the reminder of the trip and the jury answered yes. Now is that not right?
Harry L. Shniderman: The jury thus found that Ormsbee was not a trespasser.
Charles E. Whittaker: Well --
Harry L. Shniderman: The jury was not asked to consider or decide the employee question. The Court at page 169 A of the record expressed that to be his intent. There is nothing in the interrogatory which deals with regular course of business or which determines these employee questions.
Charles E. Whittaker: Now that, you maybe all correct in this, but it is -- that's a matter of argument. It is true or is it not that the jury found the facts by answering yes submitted in question, interrogatory number one.
Harry L. Shniderman: They found that he was properly present on the truck, yes Your Honor.
William J. Brennan, Jr.: Mr. Shniderman what Workmen's Compensation Act (Inaudible) for this respondent (Inaudible)
Harry L. Shniderman: No it would not.
William J. Brennan, Jr.: As I understand you in answer to Justice Harlan the question of whether Ormsbee was (Inaudible) Pennsylvania cases --
Harry L. Shniderman: The drawing of these inferences as to whether or not the Workman's Compensation Act is a defense seems to be there is support in the Pennsylvania cases for what was done so clearly in this case. We are not arguing that this Court was wrong, that the two courts below were wrong in their application of Pennsylvania practice. If of course they were wrong that would simply make the error more grievous.
William J. Brennan, Jr.: That is not purport of my inquiry?
Harry L. Shniderman: I see.
William J. Brennan, Jr.: My fault, what I was trying to get at is this, if there is an issue in the case whether Ormsbee is an employee of Fidler or of the respondent, if this case were tried in the Pennsylvania courts by whom would that issue be determined?
Harry L. Shniderman: Well first of all if there was -- this Pennsylvania practice was largely derived -- is largely as far as I can see derived from practice before the compensation board itself, where the compensation board might make a finding on that specific point. If it arose in a negligence case, it is conceivable that this issue as to -- which presents a direct conflict, based on a conflict of testimony could be put to the jury. But it certainly was not here and generally seems to be just decided by the Court, as we have shown in various cases we have cited. They simply take this function and label it a question of law which they say is open to review, all of which is compensation board language and decide this question themselves.
William J. Brennan, Jr.: Do you suggest on this record that Judge Wilson may have said that there is no issue on the employment in the case for the purposes of the Workmen's Compensation Act? So it's on the record if Ormsbee was an employee of anyone, he could only be an employee of Fidler, in which case the defense in workman's compensation would not have been available to the respondent?
Harry L. Shniderman: I am not suggesting that, perhaps that is what he was doing, but he was simply saying from the very start of this record, there is nothing in this record which would indicate anything to the contrary from the opening page, that he was not going to put this employment question to the jury, that it was a question as he put it a question of the law for the Court. Now after the jury returned the verdict in favor of the petitioner, the respondent moved for judgment N.O.V or for a new trial and these motions were denied. And on appeal the Court of Appeals reversed relying on Skinner, a secondary treatise on the Pennsylvania Workman's Compensation Act, dealing with state court practice and the Court relied on Skinner for its right to determine the employee issue as a question of law, which it stated was open to review. As you can see in a federal court case the state practice as to what is or is not open to review, was hardly an appropriate thing for the Court of Appeals to have been dealing with. Now the Court of Appeals correctly defined in regular course of business as depending upon whether the employment was an ordinary operation of the respondent, or in the words of the Callahan case cited by the Court, the normal operations, which regularly constitute the business of the employer. But the Court surprisingly concluded that since Ormsbee was on the truck, by virtue of the emergency, this put him into the regular business of the defendant, namely transportation of goods by truck. Now this Court held in Byrd, that in a federal diversity case, the jury decides the fact question of whether there was employment status under the under Workman's Compensation Act, and we have the same question in this case. The Court of Appeals relied on state practice and labeled the question of Ormsbee status a question of law and under Byrd state practice simply did not apply. The jury made a special finding in answer to interrogatory one that Ormsbee was properly present on the truck, and trial court had submitted this question as he stated, both before he did it and after he did it, for the very narrow purpose of determining whether Ormsbee was a trespasser. The judge carefully informed counsel that the interrogatory was not intended to present the employment question to the jury, but the Court of Appeals drew inferences to find that respondent was Ormsbee's employer and that the employment was in regular course. Now we do not deny that the Pennsylvania practice readily allows the drawing of such an inference as I've already said, where the fact issue is one of statuary coverage. The state cases cited in our brief show that the Court, with facility, seems to translate into and label the drawings of these inferences, labels it questions of law, but the Pennsylvania practice is certainly not basic for the statutory scheme and so the Byrd decision maybe readily applied. Now the respondent in its brief presents many ancillary contentions, but the clear thrust of its effort to distinguish Byrd is its assertion that somehow the employment question was fully presented to the jury and was decided by the jury itself in the respondent's favor. Now since the jury never heard of the Compensation Act as acclaimed bar to the cause of action, never heard of it, the respondent obviously has great difficulty in arguing that the jury could have decided anything with respect to the question, but concretely the jury was never told of a statutory standard that the employment must be in the regular course of the respondent's business in order to come within the coverage of the Compensation Act.
William J. Brennan, Jr.: This is drawing a distinction between defendant's interests and --
Harry L. Shniderman: Yes Your Honor.
William J. Brennan, Jr.: -- course of the defendants' --
Harry L. Shniderman: And that is what the Court -- that is what the respondent has done in an effort to supply the omission. The respondent fastens on these words in defendant's interests, which appears in interrogatory number one as Mr. Justice Whitaker read it. The respondent asserts that these words in defendant's interests are the equivalent of regular course of business. And from this it would follow, according to the respondent, that the jury made the determination that Ormsbee was employee in the regular course of business because his presence on the truck was in the defendant's interest. Now there is no support whatsoever in the Pennsylvania cases or in the decision below for this newly advanced contention that regular course of business and the defendant's interests are equivalent expressions. In the leading Callahan case which was relied on by the Court below, the repair of machinery belonging to the employer, was held not to be in the regular course of a business of the employer, although it was clearly in the employer's interest, couldn't have proceeded with his operation without the repair. And in the Rocco case again relied on by the Court below, the repair of the employer's restaurant ceiling was held to be not in the regular course of the employer's business, although again it obviously was in the defendant's interest. If everything in the employer's interests were held to be in the regular course of the employer's business, then clearly nothing would be excluded, and so we think it can be stated with assurance that the employment issue was in fact not determined by the jury. Now the two questions as to Ormsbee's employment status, both of which had to be decided in the favor of the respondent, were on the record factual questions upon which a jury could have drawn inferences in the petitioner's favor. First as to the question of who was the employer, the record is replete with testimony that Fidler the lessor maintained active control over the repair and maintenance of his own equipment. He garaged his equipment, he arranged for its ordinary repair by an independent contractor, even when the truck was on the road, Fidler made special trips to supply the driver with replacement tires, he hired the driver. He instructed the driver as to the garages to be used on the road for making emergency repairs and he paid the repair bills. He even told Schroyer whether to -- whether he could proceed in bad weather. When Schroyer hired Ormsbee in the tavern, he did so because of the eminent breakdown of the equipment, he felt he might need help. Both Fidler and the respondent had a policy of not permitting riders on the truck and so the trial judge was at first quite dubious about Ormsbee's status as an authorized person on the truck, but he stated that he had been shaken in his initial impression by Fidler's testimony, that he authorized his driver while on the road to engage necessary repair and other services without consulting him. So it was with a view toward getting help as to tasks that Fidler had kept under his control that Ormsbee was hired. This pertained to the repair of equipment that belonged to Fidler and did not pertain to the driving of the truck for the transportation of goods, at least a jury could have so found. Now second, on the assumption that Ormsbee became the employee of the respondent could a jury have reasonably concluded that he was not engaged in the regular course of the respondent's business? Could it have been concluded that his function was not ordinary or normal, but to the contrary was extraordinary or abnormal? We believe the answer is obvious. Ormsbee was not licensed to drive a motor vehicle in Pennsylvania. He was not hired to drive a motor vehicle, and in fact he did not drive it. This is not a case where the driver was disabled and an emergency substitute driver had to be found to take this place. Ormsbee was not engaged in the transportation of goods, and he patently could perform no function with respect to the load. The truck contained 36,000 pounds of steel. In the event of a breakdown, it hardly needed protection while repairs were being undertaken. If a breakdown had occurred presumably Ormsbee would have helped in a mechanical or a related way in meeting the trouble which led to his engagement in the first place. His contemplated services were the prospective handling of broken down equipment owned by Fidler. Now even the ordinary repair and maintenance of the truck was not handled by Fidler and certainly not by the respondent. It was contracted out, this was not even an ordinary function of Fidler, but certainly the testimony shows how far removed from ordinary or normal was the transportation of Ormsbee himself in the emergency. Ormsbee's transportation was so extraordinary that the respondent was to insist throughout the trial that he was a mere trespasser. A reasonable inference is that in respondent's normal operation, it provided neither roving mechanics, riding assistants, nor $25 a trip short-haul companions, and since a jury could have reasonably decided one or both of these factual issues in petitioner's favor, it was erroneous for the Court of Appeals to draw its own conclusions in reliance on Pennsylvania state practice.
Speaker: (Inaudible) just had (Inaudible) regular course of business (Inaudible)
Harry L. Shniderman: Well, first of all I don't think it can't be read that way.
Speaker: (Inaudible)
Harry L. Shniderman: Well, it's clear that the --
Speaker: (Inaudible)
Harry L. Shniderman: It's very clear that the Court Your Honor stated that it was relying on Pennsylvania practice as to the function that it was to perform as to the questions that were open for review. Now I really can't believe that this Court could have seriously believed that in defendant's interests were equivalent words in regular course of business. I don't think that was within the realm of possibility as anything was in the Court's mind. That point incidentally was not argued in the brief of opposition to certiorari, it came up rather belatedly in response to our brief on the merits for the first time. It was a search to find in the words of interrogatory number one, something that was not there, something that the Court itself decided by drawing inferences from the facts of record.
Felix Frankfurter: What do you conceive to be the decision of the -- what did that decide?
Harry L. Shniderman: It decided Your Honor that the function, that was a jury function to determine the question of employment status.
Felix Frankfurter: That's abstractly or with relation to Workmen's Compensation Act?
Harry L. Shniderman: It was a Workmen's Compensation Act issue as is this one.
Felix Frankfurter: Well in the Byrd case was the workmen's compensation issue put to the jury?
Harry L. Shniderman: In the Byrd case it was not put to the jury.
Felix Frankfurter: But it asked to be put to the jury? Was the case litigated as a workmen's compensation problem?
Harry L. Shniderman: The issue was not put to the jury. It was taken away from the jury as you may recall.
Felix Frankfurter: Yes, but the litigation was about the Workmen's Compensation Act.
Harry L. Shniderman: That was a defense.
Felix Frankfurter: Pardon me?
Harry L. Shniderman: That was a defense in the case.
Felix Frankfurter: Yes and the question was the jury's relation, the jury's function in relation to a defense.
Harry L. Shniderman: That is right Your Honor.
Felix Frankfurter: Is that right?
Harry L. Shniderman: That is right.
Felix Frankfurter: Now in this case is this same here?
Harry L. Shniderman: The very same case. We have what is conceded to be an affirmatively defense in this case. It was conceded and you will see that thing --
Felix Frankfurter: Was anything said about the Workmen's Compensation Act in the Byrd case to the jury?
Harry L. Shniderman: As far as I know not.
Felix Frankfurter: Not mentioned?
Harry L. Shniderman: As far as I know not.
Felix Frankfurter: But if you say the issue is that what is the status of employment under workmen's compensation, that claim, that must be put to the jury actually I should think the jury would be told something about it. So far as -- I have just for the first time read the charge of the jury and you couldn't tell from that the workmen's compensation has anything to do with it.
Harry L. Shniderman: That is right, that is right, that is the problem. That's precisely the problem. That you have -- that the respondent's burden here in trying to urge you to find words somewhere, some concealed meaning in some of these words like in defendant's interest to supply an omission. As I've said as far as the jury was concerned in this case they never would have known that there was a defense for the Workmen's Compensation Act, and so it's rather hard to say that the jury could have decided anything with respect to the issue.
Felix Frankfurter: And is that -- and where do you go from there in jump to the conclusion or going to the conclusion, that therefore that issue is not on under Pennsylvania law, a part of the statutory limitation or restriction or right, call it what you will, which is -- in other jury's business. The scope of a state statute, is that to be left to a jury?
Harry L. Shniderman: On proper instructions as to what the meaning of the statute is, that has been decided --
Felix Frankfurter: Well I mean applying it yes, but as to whether you're within or without a state statute is that a jury question, even a federal court?
Harry L. Shniderman: It is the function and the practice in the federal courts as you have said in many a case, that there is a question for example of what is an efficient brake, which is the statutory language establishing a cause of action, that the jury is to be instructed fully on what is the test of an efficient brake and then upon such an instructions the jury is to determine.
Felix Frankfurter: It's a very different thing as to the state is, that a state chooses to define for which it does or doesn't give its own state law relief, isn't it?
Harry L. Shniderman: I --
Felix Frankfurter: A brake is one thing, but whether or not who comes within the category, I can see determining whether a man comes within a category.
Harry L. Shniderman: Yes.
Felix Frankfurter: But what the category is, is not for the jury?
Harry L. Shniderman: Well, whether a man comes within the category is what you have here. The cases Mr. Justice that we cite at page 17 of our main brief show that all questions of this kind what is the course of employment, whether a person is a member of a crew, whether there is an efficient handbrake, all these questions are to be put to the fact finder whether it be a board or the jury, to be resolved by the jury. So in this case, the jury should have been told about reasonable course of business, should have been instructed that this means the normal operation which regularly constitutes the business of the employer and the jury should have been asked to find.
Felix Frankfurter: Now suppose under state law that's to be done by an administrative agency.
Harry L. Shniderman: Yes Your Honor.
Felix Frankfurter: And you then bring a diversity suit, that means you can try that in litigation rather than the administrative agency before the jury, is that your contention?
Harry L. Shniderman: Well I don't see -- I don't quite see your problem.
Felix Frankfurter: Suppose under state law --
Harry L. Shniderman: Yes.
Felix Frankfurter: -- whether a man is within or without, must be determined by an administrative agency, does diversity jurisdiction, I'm asking and this is (Inaudible), does diversity jurisdiction permit or imply that in this regard, administrative determination of these questions and bring it before a jury in the federal court.
Harry L. Shniderman: Well we don't have the case of whether the issue would be res judicata because (Voice Overlap)
Felix Frankfurter: I am not talking about res judicata. I'm taking about the process for determining --
Harry L. Shniderman: Yes I would think --
Felix Frankfurter: -- whether they should come within or without a state law, the state law says you must bring it before an administrative agency, if you've got diversity can you disregard it?
Harry L. Shniderman: Yeah, we don't have that case here, but I would say that it is a function for the Court, I mean for the jury.
Felix Frankfurter: But my question is, whether the (Inaudible) whether it's for jury or for Court, if a state says we are going to give certain relief and that's exclusive relief in this state, and it must be fought out before an administrative tribunal, can you have diversity transfer it to a court proceeding and a jury proceeding?
Harry L. Shniderman: Well I don't know the answer as to whether or not the case would lie, but that is not our case.
Speaker: Could I ask you one question before you sit down?
Harry L. Shniderman: Yes.
Speaker: (Inaudible) am right in thinking that in order to make this so called diversity you'd have to show that as per Pennsylvania practice under diversity law (Inaudible)
Harry L. Shniderman: Well if there was some reason to believe that it was some sort of a substantive right –-
Speaker: (Inaudible)
Harry L. Shniderman: Yes, that contention incidentally has not even been advanced by the respondent. If there was anything peculiar about the Pennsylvania law, such as in the Tyce case, that would be FELA situation, which would require holding that this a matter of substance. We cover that in our brief --
Speaker: (Inaudible)
Harry L. Shniderman: There --
Speaker: (Inaudible)
Harry L. Shniderman: The Pennsylvania law as to practice and certainly as you point out, is certainly not that clear, but I might add again, that if the two courts below simply misconstrued a Pennsylvania practice entirely, a position that we do not urge, but if this Court were to so find, that would simply, simply make the error even more serious, because not only would they have misconstrued Pennsylvania law but they would then have misapplied Pennsylvania law as so misconstrued in a diversity case to which it had no application.
Felix Frankfurter: Suppose that Pennsylvania law, the word practice is also (Inaudible) tack on (Inaudible) with the game of labels, those Pennsylvania workmen's compensation laws meet all questions arising in under workmen's compensation law, those proceedings in (Inaudible) exclusively to the Court, no jury at all, not the distribution of function between the two, but deal with it entirely through court. Would you call that just Pennsylvania practice for purposes of the Byrd case?
Harry L. Shniderman: I would think you would have to find that in order to say that it was substantive, you would have to find some statutory scheme that expressed an intent in a Workmen's Compensation Act, to deal with the jury function where the workmen's compensation question comes up only collaterally, which would be quite a surprising development, because the basic concentration of the Workmen's Compensation Act itself would not be on the question of what is done when the issue comes up collaterally in a tort action, but what is the scope of review that should be prevailing from a decision of the administrative board itself, when that case is taken into court.
Felix Frankfurter: I don't why it is (Inaudible)
Harry L. Shniderman: I'm sorry?
Felix Frankfurter: I don't quite see you why you minimize a defense under the Workmen's Compensation Act --
Harry L. Shniderman: I'm not trying --
Felix Frankfurter: -- under Pennsylvania law is something collateral.
Harry L. Shniderman: I'm not trying to minimize it. What I am trying to say is that it is not the direct review Mr. Justice of an administrative board that comes into the case as an affirmative defense in an ordinary tort case and to that extent it is -- the issue does arise collaterally.
Felix Frankfurter: But when you say an ordinary tort case, what you are dealing with is a policy of the state that an ordinary tort case should not be subjected to ordinary tort law, but should be subjected to the insurance principles, workmen's compensation.
Harry L. Shniderman: What I am suggesting is that the Workmen's Compensation Act itself in Pennsylvania, as far as I know in most states, simply does not concern itself with the question of who decides what issue in the tort case, but is concerned only with what is decided by the board and what the scope of review should be from the board decision.
Felix Frankfurter: And you think from that one can derive a policy those issues should be determined, those rights should be determined in a certain way, rather than some other way –-
Harry L. Shniderman: I think –-
Felix Frankfurter: -- because of the conflict. There is certainly conflict of the law or of the policy in law, between letting ordinary tort law govern the jury and letting workmen's compensation go.
Harry L. Shniderman: I think it is --
Felix Frankfurter: That's not collateral (Inaudible) that goes to the very root of the policy of Workmen's Compensation Act.
Harry L. Shniderman: I think it is theoretically possible to say that in some case, that there is a policy of a state, which is so strong that it should overcome the policy in federal diversity cases, the fact issues are decided by the jury. So that would pose the clear question of the Seventh Amendment and whether any such state policy could prevail, a question which this Court did not feel compelled to reach in the Byrd case, but which under the suggestion you would have to reach in this case.
Felix Frankfurter: Well isn't that the real question that you supplant tort law by different concepts of law (Inaudible)