Earl Warren: Number 455, United States of America versus Romualdo Cores. Mr. Davis.
John F . Davis: If this Court wish me to proceed.
Earl Warren: Is there room for you to -- to give there Mr. Clifford?
John F . Davis: Yes, sir.
Earl Warren: Looks like they didn't move out before you.
Clark M. Clifford: Thank you --
Earl Warren: Now, you may proceed Mr. Davis.
John F . Davis: Chief Justice, if the Court please. This case comes before the Court on direct appeal from the dismissal of a criminal information, charging an alien seaman with remaining in the United States for a period in excess of the number of days permitted by his landing permit. The District Court dismissed the information on the ground that the court lacked jurisdiction because the suit was commenced it thought in the long -- in the wrong district. The appellee was an alien crewman from a ship which put in at Philadelphia. He was given a landing permit which allowed him to remain in the United States for the period the ship was in Philadelphia of not more than 29 days. Instead of sailing with the ship, he went on to New York, where he stayed for about a year and then he went to Connecticut, where he was residing at the time he was apprehending -- apprehended and this proceeding was commenced. This proceeding was commenced in Connecticut, where he was residing when he was apprehended. The District Judge held that if -- if this man had committed an offense, it was completed when the ship sails and that it was a single offense, which was done at that time and therefore, he was not in violation of the law while he was residing in Connecticut. And for this reason, it dismissed the information. The Government brings the case here under the Criminal Appeals Act. Section 3237 of the Criminal Code provides that any offense committed in more than one district may be inquired off and prosecuted in any district in which the offense was committed. And so the simple question here is whether the offense with which this appellee was charged was a continuing offense, which was in the process of being committed when he lived in Connecticut, whether it was a non-continuing offense which was completed when the ship sailed. First, I think we should look at the definition of the offense as it contained -- as it is contained in the statute. That is printed at page 33 of our brief. It reads, “Any alien seaman -- any alien crewman who wilfully remains in the United States in excess of the number of days allowed in any conditional permit issued under subsection (a) of this Section, shall be guilty of a misdemeanor.” The important words from our point of view were, “any alien crewman who willfully remains in the United States in excess of the number of days allowed”. On the facts of this particular case, there are three geographic localities where it is possible that someone might claim that there was venue. First is Philadelphia, the city where the vessel put in and from which it sailed. It would really make little sense to require trial to be held in Philadelphia because the seaman is not in fact required to sail from Philadelphia by the law. As long as he -- the law reads, for the period permitted by the -- by the permit, as long as he leaves the United States within that period of time, whether he leaves from Philadelphia or somewhere else, he is not in violation of the law .In fact, many landing permits contemplate that the seaman will leave from another port on another vessel and many of the landing permits therefore would have nothing to do with the original -- the original port of entry. Now, the second locality, where venue might be asserted is the place where the crewman was physically at the time the permit expired. This of course depends in part on chance. He might in fact be in -- in transit from one place to another at the time -- the moment the permit expired. And if the permit were -- the length of the permit were measured by the time that the vessel remained in port, he might not even know of this precise time that the vessel departed and therefore, he would not know at what time he was actually violating the law. Now, the third possible place to pick the venue is the place or the places where the -- where the alien crewman resides -- remains after the period of time which it permitted by his landing permit. We believe that establishing venue in this place coincides with the language of the statute, that it coincides with the nature of the crime which is involved and that imposes no hardship on the -- on the alien involved.
Speaker: What would you do with him if he was a commuter?
John F . Davis: If he were a commuter, he --
Speaker: He commutes from New York to Greenwich, works to New York, lives in Greenwich.
John F . Davis: Well, this --
Speaker: The prosecutor maybe in the place.
John F . Davis: On -- on our -- on my theory, it would be a question whether he was remaining in those two places and I think --
Speaker: Well --
John F . Davis: -- that that is true.
Speaker: -- it's domicile, perhaps.
John F . Davis: Well, it's -- I think it's domicile, but I think also he would be remaining in New York if he worked there. I don't mean to use residence in any two technical term. I mean, he must willfully be staying in a place and rather than merely passing through it. I say this -- this is inconsistent with the language of the statute. The language of the statute as I pointed out a minute ago is that he willfully remains in the United States in excess of the number of days allowed. It does not say that the alien must leave at or before the termination of his -- of his permit. It uses the word remain and that word in itself has a -- has a sense of continuation. It can be defined as, if he continued to stay in the United States. And that is why I say that on the language, just purely on the language of the statute, this man was remaining in the United States at the time he was apprehended in Connecticut. Now, as to the nature of the offense, here, there is no objection to the alien's entry. There was nothing illegal about it. He has committed no crime outside of remaining since he has come to this country, forfeiting his right to stay. We have -- there is no discovery of any disloyalty, no association of his past, which makes him ineligible to remain in this country. Instead, the only -- the only thing that Congress was -- was getting at in this case was an alien who stayed, who remained in the country longer than he was permitted to, remained by the -- by the immigration law. This law was passed by Congress after an investigation, in which it was determined that every year, thousands of alien seamen were attempting to loose themselves in the population of the United States and obtain a right to stay here by -- not a right to stay here but obtaining the actual staying here by losing themselves in the -- in the general population. Congress wasn't concerned really with a man who overstayed his leave by days, hours, or minutes. It was concerned with seamen who were using their entry into the United States as seamen as a method of acquiring illegal residence here and therefore, I say that the very nature of the crime, which Congress was attacking was that very thing which this appellee was doing in Connecticut at the time he was apprehended. Now, since the constitutional provisions on -- on venue, without a doubt intended to protect defendants from the hardships of being tried in places where they are not properly able to defend themselves. It -- it is appropriate that in considering the construction of this statute, we should consider it in the light of the constitutional provisions that say a man shall be tried in the -- in the district where the crime takes place. And we should consider whether or not the construction, which I suggest is one which will constitute the kind of hardship which the Constitution was attempting to -- to eliminate. Well, in this case, as I say, there were three places where he could be tried and this case might be taken as more or less characteristic of this case. He could have been tried in Philadelphia of -- that's one possibility as to where a venue could be asserted. That certainly would not be a place which would be -- which we have any reason to believe -- to believe would be convenient to the seaman. So far as we would know, he hasn't been in -- in Philadelphia since the day he landed in -- in the -- in the country. And similarly with New York, he stayed in New York and presumably, may well have been there at the time when -- when the ship sailed, when his permit expired. But so far as we know, he has no connections there and it would have been -- it would be equally difficult for him to defend himself in New York. On the other hand, Connecticut is the place of his residence and it is therefore more consistent with the -- with the constitutional provisions that he should be tried in -- in Connecticut. The disadvantage which the -- which the alien suffers from our construction is that if it is a continuing crime, it may be that he could be tried in more than one district. And therefore, we are faced with the question whether he would suffer a hardship because the Department of Justice would be in a position to pick and choose among the various districts to determine which -- in which district to bring suit against him. And with -- in regard to this -- this matter, I may say that the present criminal code -- code of criminal procedure gives him protection because when there is a crime which takes place in more than one district, the Department of Justice no longer has the -- has the right to choose the district. The judge -- the District Court in which the case is brought, has discretion to remove the case to any other district where the crime -- where the crime equally occurred in order that justice may be done and therefore, the matter is left in the discretion of the -- of the Court itself.
Felix Frankfurter: When did that --
John F . Davis: It appears in the -- in the quote.
Felix Frankfurter: When did that -- when did that come in to be?
John F . Davis: This -- this provision of which I read? I think it came in with the adoption of the present court criminal procedure.
Felix Frankfurter: Way back in the --
John F . Davis: Yes, it's been there for some time. I have to check on it. But I'm not --
Earl Warren: I understood you to say that this is a continuing offense Mr. Davis.
John F . Davis: That is right.
Earl Warren: Is there no statute of limitations on it?
John F . Davis: If it is a continuing offense then the problem is when would the statute of limitations run? Would it run and if it continues -- well, it might be argued, it may well be argued if it is a continuing offense that the statute of limitations doesn't run. That as long as he continues to remain in the United States, he is -- he is subject to prosecution. I do not think that necessarily follows, however, from my argument as to venue.
Earl Warren: What does it necessarily --
John F . Davis: That -- that there was no -- that the statute of limitations would necessarily run forever.
Earl Warren: Continuing offensively.
John F . Davis: Well, I -- I suggest to Your Honor that I think it probably would, but I think that it is not certain that it would and let me explain what I mean. Under the -- under the Immigration Act for example, with respect to illegal entry, there is a special provision saying that when an alien is apprehended, he may be tried in the place of apprehension rather than going back to the place of entry. But there's no question with the statute of limitations in the case of illegal entry as such will run from the place -- from the time of entry rather than from the time of apprehension or the time he remains in the country. Now, I suggest that it is possible, if there is concern about the continuation of the statute of limitations. I think it is possible that under the Immigration Act, one could say that Congress has shown an intent that -- to distinguish between questions of venue and questions of the time of the running into the statute of limitations. And the Court could say in the light of the Immigration Act then, this provision has entry that Congress may well have intended -- could have intended that the statute of limitations would run from the time that his permit expired.
Felix Frankfurter: Or the other way around. The fact that you fix venue at one place doesn't make it a non-continuing offense.
John F . Davis: That is right. That is true. Now, I -- I am not urging them. I'm certainly not trying to give away a future Government case if there is one with respect to statute of limitations in case of -- in case it should arise in this continuing offense. There are many continuing offenses where the statute of limitations, of course, does not run as long as the illegal activity is continued. Conspiracy of course is -- is an example, which this Court has recorded all the time. Failure to register under the -- under the Alien Registration Act is another case. Failure -- failure to register under the Selective Service Act is another case. And so, that there is a general theory of law that one doesn't get a right to violate the law by violating it. There is no prescription runs and as long as he continues to -- to violate the statute will not run. That question is not before the Court. And I merely suggest that it doesn't follow necessarily from the argument which I am making here on venue. Now, the court below found some support for its position that this was a non-continuing crime. On the -- on another provision of the statute dealing with entry and reentry after -- after an alien had been deported, there is a specific provision, Section 1329 of the -- of the Immigration Act, which says, “That in those cases of illegal entry and reentry, the alien maybe prosecuted at the place where he is apprehended.” And the Court said, Congress has dealt specifically with these problems and made the provision and put venue in them and by leaving out a provision with respect to overstaying the leave, it must have intended a different result. I submit the difference in treatment by Congress is not dependent upon an intent to have a different result, rather, it is dependent upon the fact that the crimes of illegal entry and reentry are by nature specific terminable acts. And that if Congress had intended them -- intended to give a right to the Government to prosecute it, where the alien was apprehended, it was necessary to make this specific provision. And in fact that by making this provision, it probably supports our position because it would be illogical to permit aliens who have been entered illegally or reentered illegally to be prosecuted where they're apprehended and not to permit a seaman in the situation which we have. Therefore in summary, I -- I suggest that this -- this offense both by its nature, by definition in the statute, and by its consideration and inconsideration of the rights of the alien involved, may well should be held to be a continuing offense and that venues should be placed in Connecticut. I will reserve, if I may, the rest of the time for rebuttal.
Earl Warren: Mr. Clifford.
Clark M. Clifford: May it please, Your Honor. There is involved in this case an important question. The determination of which will not only dispose of this controversy but will be of substantial value to the courts below in finding a uniformity of approach to this problem. However, there is a more important consideration than that in this case. For it appears to us that under the Government's theory, they would deprive this defendant and other similarly situated of a basic important right that he is given by the law. I believe that my presentation would be most effective and I would trust most helpful. If I were to point out the two basic considerations upon which the court below reached his decision, then I shall refer to the Government's efforts to circumvent that reason, so that we might analyze the Government's position and see if there is merit in their contentions. We start with the basic principle that this defendant, Romualdo Cores, must be tried in the district in which the offense was committed. One becomes impressed with the importance that our law attaches to that consideration. It appears first, as Your Honors are aware, in Article III of the Constitution, reiterated in substance in the Sixth Amendment where it said that the man shall be tried in the state in the district in which the offense is perpetrated. It goes on then and that constitutional theory is carried into our statutory law under Rule 18 of Criminal Procedure which says substantially the same. Then in the jurisdictional section of the statutes on immigration appears Section 1329 and there it is reiterated again the jurisdiction of the District Courts shall be found in this Section and offenses are to be tried where such offenses took place. Now that's premise number one. Now the court below, I must say we're entire agreement with them, found that the offense in this instance was committed at the time that Romualdo Cores' permit expired. This man was here, we'll assume, on a 29-day permit under the immigration law. He was an alien crewman. That permit expired. Now, it seems clear to us that the offense that took place in this case was the affirmative act of Romualdo Cores in staying in this country after his permit expired. It took no other act on his part or on the part of any other person. It's when he decided to violate the law and stay in this country, and his permit expired, that is the act which we contend constituted the criminal act.
Speaker: How would your theory work in this situation, Mr. Clifford, supposing on the 28th day, the alien goes to his lawyer and says, “I want to get an extension.” The lawyer says, “Yes, I'll go down.” And then he gets reported back on the 29th day, the department has got it under consideration. He will know in a week. Then at the end of a week, which is after the 29th day, the lawyer says, “I'm sorry, I can't get the extension.” The alien still continues to remain in the country, but he's living at that time in New York instead in Philadelphia. Is he committing an offense and if so, where is he -- where is the offense committed?
Clark M. Clifford: I think the answer, Justice Harlan, is that this statute provides that he must willfully remain, and I believe that when his lawyer says to him, “Now, I have an application here for an extension and I think we're going to get it and just hold on.” I don't believe he is willfully remaining under those circumstances. But that when then such application will say is denied, it's when the willfulness begins and it's where he is located at the time that the willful violation starts that he has committed a crime.
Speaker: Well, then the mere past due, the 29 days, would not be so be the --
Clark M. Clifford: It would not.
Speaker: -- the answer to the question wouldn't it?
Clark M. Clifford: It -- it would not, Your Honor, because there must also be willfulness. I can conceive of a situation where on the 28th day, this defendant is struck by an automobile and is rendered unconscious and the 29th day comes and goes. He is not willfully violating the law on the 29th day. But on the 30th day he recovers and he's well and he says, “Well, my ship's gone, I'm going to stay here.” He is guilty of a willful violation on the 30th day and --
Felix Frankfurter: Well then he seems to be willfully remaining on the 31st day by the time he goes to another city?
Clark M. Clifford: No. Yes. He is still --
Felix Frankfurter: (Inaudible)
Clark M. Clifford: He is still illegally in the country, but the crime was committed where he willfully said, “I am going to stay in violation of this permit of mine.”
Felix Frankfurter: Now, Congress has expressed the specific words what the crime was, words of, “Willfully remains.”
Clark M. Clifford: Correct.
Felix Frankfurter: I want to know why with full knowledge that he has no right to remain. His lawyer advised him on his 31st day in New York (Inaudible) willfully to remain, does he?
Clark M. Clifford: Yes, Your Honor.
Felix Frankfurter: And the next day, for one reason or another, he moved to Philadelphia. What I want to know is what is the theory by which on a fair construction of a criminal statute or a lenient construction if he seizes willfully to remain in Philadelphia against the law. He remained there in violation of the law, but you say it isn't a willfully remain in there, is that right?
Clark M. Clifford: No. What I say is that there is a time that the criminal act is committed and we find no intention that I was going to later, for this to be a continuing offense. And the general concept is that when a crime is -- is enumerated it is considered to be an -- an act, an affirmative act. And I say that if -- if there is no language that appears that would indicate that it is a continuing crime it then comes under the general rule that it is an act at a certain time, and that is our construction that it is an act at a time. Now, after he commits the act, we say that sets the jurisdiction. Now, he may illegally continue to remain in the country, but it's when he committed that illegal act of remaining under the statute that that sets the jurisdiction --
Felix Frankfurter: What you're saying is that when he begins to willfully remain, the beginning is the exhaustion of what Congress has condemned, is that right?
Clark M. Clifford: Yes, only you said it better than I.
Felix Frankfurter: Well, no.
Clark M. Clifford: Well, now --
Felix Frankfurter: I mean it's exhaustion in every way, the statute of limitation runs from that moment?
Clark M. Clifford: Exactly.
Felix Frankfurter: I mean, that is your -- the statute of limitation runs, the venue is determined, those two (Inaudible) criminal prosecution?
Clark M. Clifford: That is our contention. Now, the Court would escape -- I mean, the Government would escape that interpretation by two suggestions. First, they say that the offense of remaining is a continuous offense and then they say also that the offense comes under that statute that provides for an offense that starts in one district and goes into another or occurs in more than one. Let's take them up one at a time, (a), that the offense of remaining is a continuous crime. Now, the answer to that suggestion on the part of the Government is that criminal violations of Immigration Acts have never been regarded as continuing crimes. Now, our brief enumerates a number of cases of this type. A man comes in at a port illegally. He's guilty of illegal entry. He then leaves that port and goes to one other place. There's an interesting case where a party comes in at New York. He is later apprehended in California. Now, he entered illegally. He has continued to remain illegally in the country all during those weeks and months. He is apprehended in California and tried there. The Court said the California Court District did not have jurisdiction, that the crime was committed back where he entered in New York. The immigration cases annotated are replete with that type of case. There has been a definite theory of law growing up in cases similar to this that a man who enters illegally and who continues illegally in this country is not guilty of a continuing crime. I might say that the Government concedes that point also. They do not --
Speaker: Can you -- can you make a broad generalization of that kind, a divorce from a particular Section of the statute that constitutes the offense?
Clark M. Clifford: I'm sorry, I don't --
Speaker: I say how can you make a broad generalization of that kind or it applies to remaining on the one hand and then on the other and filing false registration certificates. The -- the content of those offenses is different, isn't it?
Clark M. Clifford: Well, we contend that in theory they're the same. Now, I might draw this analogy, see if this helps, Your Honor. This man, Romualdo, on a -- on a Monday is in a certain place, he's in a saloon. He has a friend named Antonio with him on that Monday. Now, Romualdo is here illegally because his permit expired the day before when the crime was committed. He's here illegally. Now, Antonio, his friend, sitting with him on Monday is here illegally because he entered yesterday, Sunday, illegally. We don't see the distinction between those two individual. The first man was guilty of a crime by remaining here illegally and he started the crime, as Justice Frankfurter suggested, at the -- at the time of that affirmative act. The other man came in yesterday illegally. They're both here. Now, the Court say, the man who entered and stays here is not guilty of a continuing crime. We say merely by analogy, the man who overstays his leave and continuous to remain here is not guilty of a continuing crime. Now, there is another --
William O. Douglas: Are the provisions of the immigration law in this matter that's been -- give venue in the district of apprehension?
Clark M. Clifford: Yes, there are. There are -- there are two exceptions. I will treat it now, that Your Honor has brought it up.
William O. Douglas: It's in your own time.
Clark M. Clifford: Oh, all right. Well then if I might, I'll reach it in order. Thank you. Now, on this question of continuing, I just like to leave it with this one further thought. We consider the basic elementary principle that ordinarily when a man is charged with an offense, it is an affirmative act. Now, if the Congress is going to intend that a crime be a continuing act we say they can say so, they can tell the bar, they can tell this Court if they so. Now, they have in some instances because in the section that's been referred to and will be referred to later that is Section 3237, that Section that covers offenses that have taken place in different districts. In the second paragraph of that Section, the Congress has said, “Any offense involving the use of the mails or transportation in interstate or foreign commerce is a continuing offense.” And how simple it would have been in this instance had Congress intended this to be a continuing offense for the Congress, too, have said, “In this crime of remaining, any alien crewmen who willfully remains in the United States in excess of the number of days allowed is guilty of a continuing offense and shall be guilty of misdemeanor. It was so easy for them to say the fact that they did not, that they refused to say it, although the discussions came up indicates very clearly to us that they did not -- that intend that it be a continuing offense.
Hugo L. Black: Where is that Section printed in the brief?
Clark M. Clifford: It -- it is not printed in the brief. If, Your Honor please, on page 33A of the Government's brief appears the first paragraph of that Section. And that we -- I've just added the second paragraph. They just put the first paragraph in, the second paragraph was -- was not included.
William J. Brennan, Jr.: Mr. Clifford, you say perhaps you already have and don't repeat it if you did, that there were some discussions whether or not this should or should not be a continuing offense?
Clark M. Clifford: No. There -- there is a broad general type of discussion that is referred to in the Government brief, in which they talk about the number of seamen who come in and who are remaining here. And in that general type of discussion, there's questions of venue and jurisdiction referred to. I don't say that it is a specific subject to come. Next point, the Government attempts very different -- very strenuously to bring this offense in under Section 3237. That is the section that we've mentioned about that refers to a crime that starts in one district and goes into another district, or a crime that is committed in more than one district. We -- we say that this does not -- this type of offense does not come under that section. It does not begin in one district and it isn't completed in another district. We -- we contend that it does not exist in more than one district. We say it's the affirmative act of this man staying. At the expiration of his permit, the offense was complete. It takes no other act by him or by anybody else. Now, under this Section 3237 are annotated many cases. We've gone through those. They're the type of case that you would expect, they're conspiracy cases. They are cases that involved using the mails to defraud. There are ordinarily a number of persons involved in it. There is a very good analysis and a very good statement of what this Section means and the type of case it refers to. It appears in the memorandum that the court below wrote in a similar case called the Tavares case. And in construing this Section and in holding below that this Section did not cover this type of offense, the simple offense of remaining. The court below said, where a crime consists of distinct parts, which have different localities or where it may be said there is a continuously moving act, commencing with the offender. And hence, ultimately consummated through him or where there's a confederation in purpose between two or more persons, that's the type of offense that the Congress had in mind in passing Section 3237. We submit that it -- this does not come up. Now, getting to the point that Justice Douglas raised, Congress in the Immigration Act provides this jurisdictional section. Now, they say that there are two offenses, which can be tried in the district where the defendant is apprehended but only those two. The section says, “These defendants shall be tried where the offense is committed with the exception, however, that where a man illegally enters he may be tried wherever he is found. Exception number two, if a man has been deported and reenters, he may be tried wherever he can be found or apprehended.” Those are the only two exceptions. Now, the Congress had the right at the time when enumerating this jurisdictional section to say, “Yes, we'll include the crime of illegal entry. We'll include the crime of entry after deportation and we will include the crime of Section 1282, which is the crime of remaining over permit time.” They did not do it. They specifically refrained from doing it. And yet, it is the desire of the Government in this case that this Court write that in. There is a very apt and appropriate quote from a case, United States versus Johnson, in which are very similar question came up in 323 U.S., it had to do with enforcement of the Federal Denture Act. And in that case, Justice Frankfurter, in speaking for the Court said, “In view of the keen awareness of enforcing officials as well as that of the members of the Committee on Interstate Commerce of the problems raised by venue in criminal trials, it is inadmissible to suggest either oversight on the part of Congress in failing to make provision for choice of venue or to make the cavalier assumption that that which is specifically provided for in other enactments, that is trial in more than one district, was authorized but through parsimony of language left unexpressed.” Now, we say that in this instance, the Congress had a right to include this Section. Speaking of parsimony of language, they needed no language at all. They needed merely the figures 1282, that's all the Congress had to do, was add this Section to the two exceptions. So it seems to us that the Government is asking this Court to write into the law an exception which the Congress itself chose not to do. Counsel makes the suggestion that in this type of case where a man has remained over his permit, that he perhaps should be tried where he resides. Now, that's an interesting twist to the case. I'll give it just two minutes. And -- and they state that in the beginning on page 6 of the Government brief, they say, “So that an alien maybe prosecuted for such offense wherever he is living at the time prosecution is brought.” Then again on 12 they reiterated a little more strongly where they say “The venue for a prosecution of an alien crewman for the misdemeanor of willfully remaining, lies in any judicial district where he is found residing after expiration of his permit.” They say it again on page 18, so apparently, that's the theory with which they started out. On 18, the offense occurs wherever the alien deliberately resides. After a little while, I submit, the -- the cat gets out of the bag because on page 28 of the Government brief we find -- I don't believe that's what the Government really means. Because on page 28 they say, the end of the first paragraph on 28, “It would have been redundant to insert a light clause in regard to the crime of remaining because as an inherently continuing act, it would normally occur where the alien was apprehended.” That's what apparently they want. They want the venue, they want the jurisdiction to lie where he was apprehended. And again, their concluding sentence shows what the ultimate underlying motive is. We submit that every relevant indication of congressional intent indicates that Congress meant secretary -- Section 1282 (c) to describe a continuing offense and that venue should therefore lie wherever that offense continues to be committed, that is wherever the alien is found. Now, we submit that it finally comes out, what they want to do is try this man, Cores, and other similarly situated where apprehended. Now, that's exactly what those two exceptions are to the general jurisdiction, where apprehended. That is the man who comes in illegally, the man who comes in after being deported, they can be tried where apprehended, but they now want to try this fellow where apprehended, although the Congress chose not to make any such exception in this crime of remaining. Now, someone might ask, when the crime of remaining could have been so simply made a continuing offense, all Congress had to do as we mentioned previously, was where they said that the crime of remaining is a misdemeanor, they could have said, “And shall be a continuing offense”. When they so easily could have done it, why did not Congress make this crime of remaining a continuing offense? I believe there is an answer. I believe because they were concerned about the abuses that would result from making this a continuing offense. One has already been suggested. Where is the statute of limitations? Apparently, there is none that could very well be infused. And I say that the type of abuse that could come under this theory of continuing offense, curiously enough is dramatically illustrated in the Government's own brief. On page 19 of the Government's own brief, appears this statement at the top. And let me read it and then let me suggest the significance of it, “In this case, the information, which we'll refer to shortly, permitted proof that appellee was willfully remaining in the United States beyond the specified period when he went to Connecticut, regardless of the fact that he was not residing there at the instant his permit expired.” Now, look where that leads us. As we look at the record we find that on page 2 is the information and it says, “On or about May 26, 1955 at Bethel, Connecticut within the jurisdiction of the Court, Cores did commit an offense.” Now, they say that under that information, they can introduce proof of the offense. Now, the offense as shown here, that you'll see also in the record is, he was in Connecticut in May of 1957, two years later. And yet they say under our theory of continuing offense, we can charge a man in an information with an offense on May 26, 1955, he can prepare himself to answer that defense and yet, we can come into Court and show that he committed offense in May 1957 and we can hold him guilty. Now, we say that Congress never intended anything like that. We say further that we cannot believe that this Court could put its stamp of approval on any such construction. And I believe it shows very clearly why the Congress did not choose to enlarge this into a continuing offense. As amicus, I believe I have one other responsibility. That is to protect this man's rights under the record that exist here and I submit to you a curious situation exists. It's a very short record. As I looked at it, as I read it, as I studied it, I couldn't get over the uneasy feeling that there was something wrong about it. Finally, if the Court will excuse me, I concluded there's something fishy about it, and I -- and I believe there is. As you look at the colloquy between counsel here, for instance, it took place. Apparently, this defendant, Cores, was represented, in big print it says, “For the defendant”.
Earl Warren: Where --
Clark M. Clifford: But in --
Earl Warren: -- where do we find it?
Clark M. Clifford: Page 3, if Your Honor please.
Earl Warren: Of the record?
Clark M. Clifford: Page 3 of the record. Thank you. In this colloquy that took place which look, I must say very curious to me, it seemed to -- it didn't seem as though it started at the beginning but that's all that came up. But here, there's a colloquy between judge and counsel but the counsel is a Government counsel. There's no time do I see the defendant's counsel saying anything. And yet, the queerest thing about it is that this man is charged with an offense in May of 1955, he knows that he's not guilty of that offense because the Government's attorney says he was in New York for a year before coming to Connecticut. And yet when this man is charged with an offense in May of 1955 for which he knows he's not guilty, there's a record in here as though at one time he tried to plead guilty. Now, I don't know what was going on down below, but it made me very uneasy. I don't know where his counsel was. I don't know why there should be any such suggestion because he had a complete defense, not only did he not commit the crime charged in the -- in the information but just one month before this case came up for hearing, was this Tavares case, in which the Court wrote a memorandum and said he had no jurisdiction. And yet that's not raised in behalf of the defendant. The only thing that saved this defendant below was a conscientious District Judge, named Judge Smith, who had to bring the matter up. Now, the importance of that is this, in addition to the construction of the statute, which appears to us, clearly means that this is not a continuing crime. There is another reason why the verdict below of dismissal should be affirmed. I say that it should be affirmed aside from the other consideration on this record alone, because on page 2 of the record, we see that this man is charged with an offense on May 26, 1955. Over on page 3 in the first sentence, the Government attorney says, “I'd like to draw the Court's attention, he stayed in New York for about a year before coming to Connecticut.” I submit what could the Court do and do otherwise? A man is charged with an offense on May 26, 1955, the Government's own proof through statement of counsel is that he did not come to Connecticut for at least a year thereafter. I think the judge said, “I was given jurisdiction by the charge in the information, you have disproved it to me, I have no alternative but to dismiss.” Amicus submits that under two theories, both the first one on the construction of the statute, the second one, because the record itself shows lack of jurisdiction, the judgment of the court below should be affirmed. Thank you, Your Honor.
Earl Warren: Mr. Davis.
John F . Davis: Chief Justice, if the Court please. If I understood Mr. Clifford's argument correctly, at one stage he suggested to the Court that in the case of continuing crime offenses, venue should be fixed by the beginning of the crime rather than where it continues. In that regard, I may say that Congress has acted not in this statute but in the -- generally in the -- in the criminal code. It acted after the decision in the Johnson case, where this Court said that if the Court -- if Congress meant these offenses to be prosecuted in more than one place it should say so. Congress then proceeded in 18 U.S.C. 3237 to say precisely that, to say that when there is a continuing crime, the defendant may be prosecuted in any place where that crime takes place. And therefore, I suggest to you that there was no necessity when Congress had defined a crime as a continuing one as it is our contention it did in the Immigration Act, no necessity for making a special venue provision. I would like to refer also to this discreancy in the -- in the criminal information. The criminal information as it is set forth at page 2 of this record is defective. The United States attorney called it to the attention of the Court and -- and told the Court that actually, the man was not in Bethel, Connecticut on May 26, 1955 but that he came there two years later. And so, this would be a situation where it would be necessary to amend the information to conform with the facts in order to -- before the -- before the proceeding would be completed. Rule 7 (e) of the rules of criminal procedure provides specifically for amending information to conform to the facts as they existed. Now of course, if that resulted in a hardship on the alien, if that did prevent him from making his defense, the Court should not exercise its discretion to permit that amendment. The Court didn't go into that. Appellate dismissed the complaint entirely on the ground that there was no venue as a matter of law.
Hugo L. Black: Mr. Davis, what statute of limitations apply to this, when in your judgment (Inaudible)
John F . Davis: The general statute of limitations of five years would apply to this, the general statute --
Hugo L. Black: From what date?
John F . Davis: And it would -- I -- I believe it would run from the last date that he continued to remain illegally in the United States.
Felix Frankfurter: So that would be after he left the United States.
John F . Davis: It would. I -- I say I believe that. I do not believe it's inevitable if that is the result because as I suggested earlier, in the light of the -- of Title 8, they do separate venue and statute of limitations for the purposes of entry and reentry. And I believe that if it were felt that that was inappropriate construction, that they could separate venue and statute of limitations for this case also.
Earl Warren: Mr. Clifford, I would like to express the appreciation of the Court to you for having defended this indigent defendant (Inaudible) dismiss that regardless of the way this case may turn out. The Court is always confident by the fact that busy lawyers are willing to give their time and energy as you have in order to defend the rights of the defense in person. Thank you very much. And Mr. Davis, of course, we appreciate the earnestness with which you have represented the interest of the United States.


Warren E. Burger: We'll hear arguments next in Perry Education Association against Perry Local Association. Mr. Chanin, I think you may proceed whenever you're ready now.
Robert H. Chanin: Mr. Chief Justice, and may it please the Court: This case arises in a public school district in Indiana. Indiana has enacted a statute governing the labor relations of its public school teachers. Like the National Labor Relations Act and the public sector labor relations statutes in other states, it adopts the principle of exclusive recognition. Under that principle, the union selected by the majority of teachers in an appropriate bargaining unit is authorized and indeed obligated to represent all teachers in that unit, whether they are members of the union or not, in dealing with the school district. In 1977 an election was held in the Perry Township school district to select an exclusive representative for the teachers. The competing organizations in that election were the Appellant, PEA, and the Appellee, PLEA. During the election campaign itself, both organizations were treated equally and they were accorded the same opportunity to sell their programs, their activities, and their ideas to the voting teachers. The teachers voted and chose PEA as the exclusive representative. PEA subsequently entered into a collective bargaining agreement with the school district. Among other things, the agreement gave PEA access to the individual teacher mailboxes, which are name slots which appear in each school building, and to the inter-school mail system, which is a courier service by means of which the district delivers material from school building to school building. The collective bargaining agreement expressly stated that these rights are given to PEA... and this is the quote from the agreement... "acting as the representative of the teachers. " And that article went on to deny to other employee organizations, including PLEA, access to those school mail facilities. The PLEA and two of its members challenged this access restriction as violative of the first Amendment and the equal protection clause of the Fourteenth Amendment. The district court granted summary judgment for Defendants, but the Seventh Circuit Court of Appeals reversed. The Court of Appeals held that it is unconstitutional for a school district to distinguish between the exclusive collective bargaining representative and rival unions in granting access to internal communication facilities. This holding, which would invalidate the prevailing practice in public sector labor law throughout this country, is inconsistent in several respects, we believe, with the principles announced by this Court. Its overriding defect, however, is its failure to recognize the distinction that this Court has drawn between public and non-public forums in determining the constitutionality of access restrictions. It is appropriate to begin analysis by setting forth the two standards that this Court has adopted. If the property in question constitutes a public forum, the government's right to restrict access is subject to rather stringent limitations. Generally speaking, it only may impose reasonable time, place and manner restrictions which are content-neutral and narrowly drawn to meet a compelling governmental interest. A different standard applies if the property is not a public forum. Although we are not suggesting in any sense that government is free to act without restraint, the test is a less stringent one. The access restriction is constitutional if it is reasonable on the one hand, and is not designed to prohibit access because the government disapproves of a speaker's view or seeks to favor one point of view over another. It is within this framework that we believe the issue before the Court can be best analyzed, and we believe that issue can be divided into two subsidiary questions. The first is, which of the two standards is appropriately applied to the school mail facilities? Once that is determined, the second question is whether the challenged access policy meets the appropriate standard. Although the court below found that the school mail facilities are a nonpublic forum, it did not judge the constitutionality of the access policy by the standard that this Court has held applies to such forums. It applied instead the public forum standard and concluded that the policy failed to pass constitutional muster under that standard. It is our belief that the latter conclusion is wrong in its own right and that the access policy here in question is sustainable even under the more stringent standard. But there is no occasion to reach that question in this case. We submit that the dispositive flaw in the decision of the court below is its failure to use the proper standard to judge the constitutionality of this access policy to this nonpublic forum. The Appellees appear to concede this. They make no attempt to defend the analysis or approach taken by the court below. To the contrary, they acknowledge the importance of the distinction between the standards governing access to public and nonpublic forums, and devote much of their argument to an effort to demonstrate that the school mail facilities are a public forum. We submit this effort fails. Under the relevant legal principles set forth by this Court, most recently last term in United States Postal Service v. Council of Greenburgh Civic Association, it is clear that the school mail facilities involved in this case are a nonpublic forum. It is well established that certain government property is by its very nature a public forum: streets, parks, highways, and certain analogous facilities which historically have been used for purposes of public assembly and debate. These, I think the reference would be traditional public forums. Although it may sometimes be difficult to determine whether a particular facility is sufficiently analogous to a park or a street to be classed as a traditional public forum, again this question is of no concern here. No one is suggesting that the school mail facilities are in any sense like the parks, like the streets, or like the highways. It is conceded that they are not a traditional public forum. But that of course is not the end of the matter. Government may by its actions convert what otherwise would be a non-public forum into a public forum, and Appellees contend that that is what has happened here. It is their position as we understand it that the school mail facilities have been converted into a public forum to which they have a constitutional right of access, and because of the existence of that right the access policy before the Court must be judged by the more stringent standard applicable to public forums. The test to be used in determining whether such a conversion has taken place was also set forth in the Greenburgh case. If the facilities have been preserved for the use to which they are lawfully dedicated or preserved for their normal and intended function, the property remains a nonpublic forum. If on the other hand the facilities have been opened up for more general use, they may become a public forum for certain groups or for certain purposes. To apply this test here, the threshold question is to identify the uses for which the school mail facilities are lawfully dedicated.
Warren E. Burger: Speaking of threshold questions, counsel, at some point I hope you're going to address the jurisdiction question. But you do it in your own time.
Robert H. Chanin: Mr. Chief Justice, it was not my intention to address it in oral argument. We believe that the point is clear and we have addressed it rather completely in our reply brief, and unless there are questions we're prepared to rely on the reply brief. Phrased otherwise, the question we must look at it, what is the normal and intended function of these school mail facilities. The Appellees point out that they are basically a communication medium and what they seek to do is communicate, and therefore they are within the normal and intended function. We submit that is far too broad a formulation. The function must be more narrowly defined if it is to have any meaning. The normal and intended function of a school mail facility is not to carry information by anyone, about any subject. The normal and intended function, as both of the lower courts recognized, and indeed as Appellees concede in their briefs, is to communicate to the teachers information that involves school business. That is the normal and intended function. So we must look in this case as to what does the phrase "school business" mean. And in the context that we have before us, it derives meaning from two sources. The first is the inherent function of any school district to educate children. This function would embrace any communications that the school district reasonably concludes are supportive of that mission, that are of relevance and educational interest to the students. But there is in this case a second source from which the phrase "school business" derives meaning, and that is the Indiana labor relations statute, more specifically the representational duty that that statute imposes upon the union that is designated as the exclusive representative and which requires it to have an effective method for communicating with the members of the bargaining unit that it is both authorized and obligated to represent. The Appellees admit, as does the court below, that PEA has legal obligations vis a vis the members of the bargaining unit that it does not have.
Sandra Day O'Connor: Mr. Chanin, what does the record show here was the use by others of the mail facilities?
Robert H. Chanin: What the record shows, Justice, is that subsequent to the designation of PEA as the exclusive representative in 1977 the mail facilities have been used by PEA in its representational capacity and by the YMCA, the YWCA, the Cub Scouts and certain parochial schools, all organizations which we submit are on their face youth-oriented civil organizations which are engaged in activities that would be of interest and educational relevance to students.
Sandra Day O'Connor: Does the record tell us any more about the specific uses than simply the identity of the users?
Robert H. Chanin: No, the record indeed says nothing about the specific uses by PEA or by any of the other groups. It merely identifies those who have had access, and the only groups that have had post-1977 access are the civic youth groups I've identified.
William H. Rehnquist: Is it possible to say, Mr. Chanin, whether any group besides... is it the PLEA is your group's rival?
Robert H. Chanin: It is our rival.
William H. Rehnquist: Yeah. Were affirmatively excluded in the sense of having sought access and been denied it?
Robert H. Chanin: There is nothing in the record to indicate that.
William H. Rehnquist: Does that lead to... can you then generalize as to what the school district's standard for access to these mailboxes was, or are you left pretty much to having several points and trying to figure out where the line goes?
Robert H. Chanin: Oh, no, we have no trouble whatsoever identifying the standard. We think the standard is that the school mail facilities since 1977 have been limited to communications dealing with school business. And we think that youth organizations that wish to communicate about their youth-oriented activities and programs is school business, and we think that an elected exclusive representative with statutory obligations toward the teachers is also school business. The record indicates no other use post-1977, and we think the standard is clear.
John Paul Stevens: Can you give us some examples of communications from your client to the teachers that would be school business as you describe it?
Robert H. Chanin: Not from the record, Justice Stevens, but I can tell you what this union and other unions typically include in their communications. They send information about the implementation of the collective bargaining agreement, about the settlement and disposition of grievances, about working conditions that they are dealing with the school board about.
Thurgood Marshall: And what a stinker the other union is.
Robert H. Chanin: Pardon me, sir?
Thurgood Marshall: And what a stinker the competing union is.
Robert H. Chanin: I think that may come in occasionally. But certainly that is not the purpose for which they were granted use. The purpose for which they were granted use is to perform their functions as a representative of all of the teachers. From this record there is nothing to suggest that they did anything but that. The contract specifically limits their use to that function. There is nothing in the record to rebut that. It seems to us that if there were evidence to suggest--
John Paul Stevens: Just taking one of your examples, describing the result of a particular grievance between one union member and the school board, I assume, why would that be disseminated to the entire union membership?
Robert H. Chanin: --Because the resolution of the grievance--
John Paul Stevens: To tell them what a fine job they've been doing?
Robert H. Chanin: --The resolution of a grievance that arises under a collective bargaining agreement does not have one-on-one impact. What it will usually turn on is the interpretation of a phrase or a provision in a collective agreement which has widespread impact on the entire bargaining unit. We think this Court has recognized on numerous occasions that at the very least, and we believe it's probably broader than that, the legitimate functions of a representative organization are collective bargaining, contract negotiation, and contract administration.
Thurgood Marshall: What would happen if Congress passed a law which said that the NEA shall have the authority to send its mail with a frank on it and denied that to all other organizations?
Robert H. Chanin: I think that law would be unconstitutional, Your Honor.
Thurgood Marshall: And the difference is what?
Robert H. Chanin: The NEA does not hold in that context this special status vis a vis the constituency to who that franked mail would go. What we have here is a union, the PEA, which was not chosen for unreasonable or arbitrary reasons to have this access privilege. It competed under a state law, under the principle of exclusive recognition, and it won. And the only reason that it has been given access which has been denied to other unions is because it won. Now, the PLEA will have an opportunity at an appropriate time under the Indiana statute to challenge the PEA. And if it wins and becomes the exclusive representative, it will have those legal obligations and we assume that it will have the access privilege.
Thurgood Marshall: Well, it'll be a fair fight, won't it? One of them has free access and the other one doesn't.
Robert H. Chanin: That is not the fact, Your Honor. The Indiana law makes it clear--
Thurgood Marshall: I'm not talking about Indiana law.
Robert H. Chanin: --Well, I would like to just focus in on the fight, sir. When that fight takes place... and by "fight" I mean the representation election... then both organizations that compete are guaranteed equal access to all communications facilities.
Thurgood Marshall: Does that give them the right to use those boxes?
Robert H. Chanin: They will be during the representation campaign.
Thurgood Marshall: Now where'd I get that from?
Robert H. Chanin: That's in the record. In 197--
Thurgood Marshall: Where? Where is that in the record?
Robert H. Chanin: --It is in the request for admissions, the responses. It is also in the affidavit submitted by the school board, and it's also a matter of Indiana law established in the Pike decision, which is attached in our jurisdictional statement. The law in Indiana is that exclusive privileges of access are available only during the insulation period. The insulation period is after a union has won the election and until it may be challenged under state law. In most cases that is for two years. In the election that took place in '77 there was equal access, and if there is another election there will be equal access again.
William H. Rehnquist: Mr. Chanin, state law just allows it?
Robert H. Chanin: State law requires equal access.
William H. Rehnquist: Yes, but during the insulation period state law doesn't require unilateral access. Only it simply permits it to be bargained.
Robert H. Chanin: That is correct, it allows it as a bargainable matter.
Thurgood Marshall: I sure wish you could point that out in the record, or do I have to go look for it?
Robert H. Chanin: I can point it point.
Thurgood Marshall: Okay, I'll find it, if it's there.
Robert H. Chanin: Let me, if I may, get back to the point--
John Paul Stevens: While you've been interrupted already, just to clarify, is the school board a party or was it a party below?
Robert H. Chanin: --The school board was a party in the district court and the Court of Appeals. It has not joined in the appeal to this Court.
John Paul Stevens: Does the school board have any interest in your prevailing?
Robert H. Chanin: I'm sure it does.
John Paul Stevens: What is the interest of the school board that's at stake?
Robert H. Chanin: We would like to believe that its interests are that we prevail, that what we are seeking here is to sustain a provision which we believe and which this Court has indicated contributes to labor peace, to labor stability, and to a more rational relationship.
John Paul Stevens: But the provision in dispute was adopted by the board at the request of your clients, was it not?
Robert H. Chanin: It was adopted through collective bargaining, in the give and take of collective bargaining.
John Paul Stevens: And is there any reason why, had the union not been interested in preventing your rival union from having access, is there any reason to believe that the school board independently would have concluded that this was a desirable provision? And if so, what reason would motivate it?
Robert H. Chanin: I think there is reason to conclude that, although I can't look into the mind of this school board. I might suggest that Congress has concluded that it is a good thing to limit it to the exclusive representative and has built that into the law governing labor relations of federal employees. The new Civil Service Reform Act in 1978, picking up on Justice Rehnquist's question, does not merely authorize preferential access, it mandates it. It makes it an unfair labor practice to allow a minority union to use federal government facilities when there is a recognized organization. So I think, at least as a general answer, here is a presumably objective body, the United States Congress, which concluded that that contributes to a more stable system of labor relations.
William H. Rehnquist: Well, even if the school board weren't all that happy to have either union in there, I suppose it has some interest in keeping use of the teachers' mailboxes by outside groups at a minimum. You have forced it in effect to give you access, but perhaps it would just as soon limit it as much as it could.
Robert H. Chanin: I expect that's true. We have forced it, I think, in two ways: through collective bargaining and because we presumably persuaded it that we have legal obligations which this enable us to perform more effectively.
William H. Rehnquist: In the course of the bargaining and in the development of this rule, was your claim in the bargaining, your demand, that your organization have access and your rival organization not have access, or simply that your organization have access--
Robert H. Chanin: I only know, Your Honor, and the record only indicates what came out of the bargaining. What came out of the bargaining was the double-sided limitation.
Sandra Day O'Connor: --The exclusive access.
Robert H. Chanin: The exclusive access, yes.
Sandra Day O'Connor: Now, the SG has filed something with us indicating that your union may have to pay postage, isn't that right?
Robert H. Chanin: Your Honor, yes, they have, they have. What they have contended is that allowing one of the two facilities here... we have school mailboxes and inter-school mail system. The Postal Service takes the position that for the school district to cary union mail in its inter-school mail system without postage is a violation of the Private Express Statute. I just might mention--
Sandra Day O'Connor: So this exclusive privilege may not be worth much in the future?
Robert H. Chanin: --Well, I think that is an overstatement, I would like to believe, of what they say. First of all, their basic--
William H. Rehnquist: Is this really before us?
Robert H. Chanin: --Pardon me?
William H. Rehnquist: I took it all that the Solicitor General might have wanted was a footnote in the opinion disavowing any--
Robert H. Chanin: At best it is a footnote. We think they're wrong, and if they're right it has no relevance. That's basically how we view it. The Appellees do not even contend that by allowing PEA to use the school mail facilities to perform its representational functions it has gone beyond school business, and their case for conversion is not based on that use. Their case for conversion to a public forum is based on three other alleged uses. They contend first that PEA has unfettered use, that it has not been limited to access solely to perform its representational function. There is nothing whatsoever in the record to sustain that assertion. The contract upon which the access right is based specifically says "acting as the representative of the teachers. " The record is totally silent in the face of that statement. If there were any evidence to indicate that PEA was granted or has used the school mail facilities for any other purpose, it would be Appellees' burden to produce that evidence, and they have failed to do so. The Appellees next assert that numerous non-school-connected organizations have been allowed to use the school mail facilities, and their quote is, "for purposes wholly unrelated to official school or educational concerns. " That is the YMCA's, the Cub Scouts, et cetera, which we have spoken to. Let me, if I may, just put this in a context, because much of what has been said takes it out of the way it must be viewed. It's important to emphasize what is involved here. Although this case arises in an educational setting, it does not involve academic freedom, textbooks, students' rights. It is a labor relations case. The Plaintiffs are a labor union and two of its members, and they seek to use the school mail facilities to promote their organization and to increase its membership. The Appellees' papers are filled with references to the marketplace of ideas and monopolistic control of access media. They conclude their motion to dismiss by stating that if this decision, this policy, is struck down PEA will be forced to compete in the marketplace of ideas solely on the strength of their ideas and program. We did compete in the marketplace of ideas. We competed during the representation election, and with equal access we sold our ideas and our programs. And that's why we have access and they don't. Now, if they want to challenge us again we'll compete again, equally and without preference, in the marketplace of ideas. And if they beat us, they'll have access. But to suggest, as they do, that this competition must go on continuously, and even more, that the school board has to make its facilities available to force that competition, is not only unreasonable but it is the very antithesis of labor peace and stability. I would like to reserve any remaining time.
Warren E. Burger: Mr. Zweig.
Richard L. Zweig: Thank you. Mr. Chief Justice and may it please the Court: This case raises the question of the constitutionality of a collective bargaining agreement between a teachers union and a school district which grants the teachers union exclusive access to the school's internal mail system and compels the school district to deny that right to another teacher organization, while at the same time the school district is permitted and in fact does allow numerous other organizations and individuals to use that system for whatever purpose they deem appropriate. The Metropolitan School District of Perry Township consists of 13 schools, and in each school there is a set of mailboxes which has a teacher's name written above them. This internal mail system and the mailboxes which are part of it has been in place for a number of years, and for a number of years outside groups, individual teachers, the Perry Education Association, and the Appellee here, Perry Local Educators' Association were granted simultaneous and equal access to those facilities.
William J. Brennan, Jr.: Are you going to leave the issue of jurisdiction to your brief, as your adversary has?
Richard L. Zweig: I would be glad to comment on the question of jurisdiction.
William J. Brennan, Jr.: I wish you would.
Richard L. Zweig: The Perry Education Association has attempted to invoke this Court's appellate jurisdiction on the basis of 28 United States Code Section 1254. They state that the Court of Appeals for the Seventh Circuit held an Indiana statute in essence to be unconstitutional. In point of fact, what the Court of Appeals held was a paragraph in a collective bargaining agreement between the school district and Perry Education Association violated the Perry Local Educators' Association's rights under the First Amendment. Indiana law does not treat that contract as either an ordinance or a statute. Rather, it treats it simply as a contract. Indeed, Indiana law limits those bodies which are permitted to enact statutes or ordinances. Those limitations are placed by the Indiana General Assembly and the Indiana Constitution, and nowhere is a school district given the authority to adopt an ordinance.
William H. Rehnquist: Supposing an Indiana school district adopted, outside of the labor context, a regulation saying that no black armbands shall be worn in the school by the students. Would you say that was not appealable here under the same circumstances?
Richard L. Zweig: We would say that is appealable, because that would be a unilateral action by the school district, as opposed to something that was the result of a collective bargaining process.
William H. Rehnquist: But supposing the school district held intense hearings and heard all sorts of groups on this black armband question, and one group demanded one thing and one demanded another thing, and the school board finally came out and said, this is the way we resolve it. Is that all that different from this? I mean, it's the school board that finally grants the access, not the union.
Richard L. Zweig: We would say that that is a different situation. The situation which you posit we believe is more synonymous with what happens in the legislative process generally, where hearings are held on bills that are presented both to Congress and to state legislatures, and ultimately it's the legislature that adopts that ordinance unilaterally or that statute unilaterally. And that's not the case in this instance, where you have one party negotiating with another party and the result of that is a contract. And indeed, we think that the case centrally relied upon by the Appellants, the King Manufacturing case, does make that distinction. That case talks about what a statute is and what it declares is that a statute is a unilateral enactment by the legislative body.
Byron R. White: How was the contract approved?
Richard L. Zweig: It was approved at an open school board meeting.
Byron R. White: So it took a legislative act to approve it?
Richard L. Zweig: In one sense of the word it was a legislative act.
Byron R. White: Well, it was, wasn't it?
Richard L. Zweig: Except that under Indiana law that wouldn't be considered to be a legislative act. It is the result of a collective bargaining process which requires adoption by the school board. To that extent it would be a legislative enactment. But we think there is a difference.
Byron R. White: What if the school board in advance passes a resolution at one of its meetings that, our negotiators are authorized to agree to an exclusive use provision in the contract?
Richard L. Zweig: If that went through the appropriate process and so on and that was a regulation that was adopted, yes--
Byron R. White: That's all we know, is that they adopted it and authorized it. Do you think that would be a legislative act?
Richard L. Zweig: --That might be a legislative enactment.
Byron R. White: Well, do you think it's different, do you think it's different if after the fact the school board approves it?
Richard L. Zweig: We do think it's different.
Warren E. Burger: How? Why?
Richard L. Zweig: We think it's different because it is the culmination of a process where two parties are negotiating over a point. It is different than a legislative enactment where there is a lot of debate and ultimately it's only the legislators who have the authority to pass the statute or the ordinance.
Warren E. Burger: But is the process any different in the advance authorization than in the subsequent ratification?
Richard L. Zweig: The process is different in the way the system sets up the--
Warren E. Burger: You think the school board has a little less in the way of options in the second situation?
Richard L. Zweig: --The options I think are much more great in the collective bargaining process, probably, than in the legislative enactment process.
Byron R. White: Well, what if you're right? What are we supposed to do about it?
Richard L. Zweig: We would ask this Court to find that there is no probable jurisdiction under that statute--
Byron R. White: And do what?
Richard L. Zweig: --Consider this case as a petition for a writ of certiorari.
Byron R. White: And then decide it?
Richard L. Zweig: Decide whether or not to take the case, initially to assume jurisdiction over it.
Byron R. White: Would you say then we should dismiss the appeal and then deny cert, is that it?
Richard L. Zweig: Yes, that's what we are suggesting.
Warren E. Burger: Or, having heard it, dismiss it as improvidently granted?
Richard L. Zweig: Yes, under either form. In terms of the substantive issues presented by this case, there are some points about which we do agree. The first is that the First Amendment does apply to the issues which are raised by this appeal. So much has been stated by this Court in Tinker versus the Des Moines Independent School District and by Pickering versus the Board of Education. That much we all agree. We all agree also on the act that this exclusive access policy does limit our rights of free speech and assembly under the First Amendment.
Byron R. White: You do agree, don't you, that in the federal context that this exclusive use of the exclusive representative is fairly usual?
Richard L. Zweig: It is fairly usable certainly in the military area--
Byron R. White: Usual, usual.
Richard L. Zweig: --Usual, in the military area. I do not personally know if it's fairly usual within all federal agencies. That is not disclosed by the record.
Byron R. White: Do you agree or not that 5 U.S.C. 7116(a)(3) provides for, is a general provision requiring exclusive use by bargaining agents--
Richard L. Zweig: I have to frankly say that I'm not personally familiar with that particular statute.
Byron R. White: --Well, if it is, it certainly is a Congressional declaration.
Richard L. Zweig: Yes. Yes, sir. The basic point of departure for the decision before this Court is whether or not that internal mail system which was established by the Perry Township School Board is a limited public forum, and this Court has set out what the test is for a limited public forum or a public forum generally. That's set out in Grayned, where the Court said that we must inquire as to whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time. The school board in this case has already determined that PLEA's use of that system... PEA's use of that system, before 1978 in any event... was compatible with the uses for which that system originally was developed, and that is to facilitate communication between teachers. Furthermore, this Court in Tinker implicitly acknowledged a public school is a form of a public forum, not in the sense of the national mall, not in the sense of the streets and the parks, but for certain purposes it is a limited public forum; and that speech within that forum can be limited by the state only insofar as it will materially and substantially disrupt the education of students and the system generally.
Warren E. Burger: Sometimes schools allow political candidates to come and make speeches in the evening in many states. Do you think when they do that they must either let all candidates come or not permit any to come?
Richard L. Zweig: I think that a school district which allowed, for example, the Democrats to come in and speak to the teachers would be hard-pressed to deny any other political group access to those, to the facilities for the purposes of--
Warren E. Burger: Just hard-pressed?
Richard L. Zweig: --I think it would be a violation of the First Amendment.
William J. Brennan, Jr.: Do you say, Mr. Zweig, that your case depends on our agreeing with you that this is a limited public forum? Suppose we don't?
Richard L. Zweig: We don't believe it's essential that the Court determine that it is a limited public forum. As the Court in Bellotti held, even where there is not a public forum, that unless there's a compelling state interest in limiting a particular speaker to speech, that a state has no business silencing a particular speaker on any particular issue. And in this case there are no compelling state interests which have been proven or even suggested by the Appellant or the school district.
William J. Brennan, Jr.: Well, I thought what they suggest was that this is in the interest of labor peace.
Richard L. Zweig: They suggested that--
William J. Brennan, Jr.: That's certainly a state interest, isn't it?
Richard L. Zweig: --It certainly is, Mr. Justice Brennan. But they suggested that only in the courts below. They have not reasserted that here, and presumably the reason they haven't reasserted it here is that at no time from 1973 forward, when PEA first became the exclusive bargaining representative, has there been any incident of labor disharmony or strife between PLEA and PEA. There's just no evidence of that whatsoever. The second--
William H. Rehnquist: Well, the federal contract bar rule for a period of whatever it is now is certainly imposed just across the board, without regard to whether there might be disharmony or friction in that particular employment situation. Do you think that the state or the school board in this case would be unjustified in saying, we're not going to look into individual examples of whether or not there's harmony or disharmony, we just think this is a good policy and we're going to adhere to it?
Richard L. Zweig: --I think the school board and the state... strike that. Just the state can make the determination that a two-year period where there will not be permitted any challenge to the exclusive bargaining status of a group, is a legitimate state interest and maybe compelling. It offers the opportunity to allow the majority union to solidify its status, to get its foot in the door, to get itself planted, and to do those things which are important for an exclusive bargaining representative to do.
Harry A. Blackmun: Mr. Zweig, there is contrary authority to your position, is there not?
Richard L. Zweig: Yes, in the lower courts.
Harry A. Blackmun: Including two Courts of Appeals.
Richard L. Zweig: Yes.
Harry A. Blackmun: Do you cite those cases and try to distinguish them at all?
Richard L. Zweig: We think those cases are simply wrong. On their facts they are similar to this case.
Harry A. Blackmun: But you don't even say that in your brief. You don't cite them.
Richard L. Zweig: We do not cite those cases in our brief. We acknowledge, however, that there is the split of authority within the circuits, and we contend that the decisions by the Second Circuit and the Sixth Circuit are simply wrong because they don't elevate the interests under the First Amendment to the point where they're supposed to be as we see it. In essence, those courts held that the First Amendment rights being asserted were de minimis.
William J. Brennan, Jr.: I take it if your union has access to the system it would use it, in large part at least, to point out the deficiencies in the representation by the PEA, would it not?
Richard L. Zweig: That might be one purpose for which we'd put the system.
Byron R. White: What else would you use it for?
Richard L. Zweig: We might also use the system to communicate our ideas about issues that come up in the day to day operations of the schools, whether it be with respect to--
William J. Brennan, Jr.: Well, I take it what you want to persuade the teacher constituency is that you'd be a better representative of theirs than is PEA; would you not?
Richard L. Zweig: --In part. But it might also be to influence the members of the PEA--
William J. Brennan, Jr.: That would certainly set up a not too pleasant atmosphere for the school board, would it?
Richard L. Zweig: --We don't believe that it would, and we base that upon the facts of this case. Prior to the time that this exclusive access policy was enacted, both PEA and PLEA had access to that system. And during that time there was no incident of labor strife. We do not believe that there is any basis in the record to project that there's going to be labor disharmony or strife.
William J. Brennan, Jr.: There was no exclusive representative during that period?
Richard L. Zweig: There was an exclusive representative during that period, and that exclusive representative was PEA.
Thurgood Marshall: Well, one way to stop it would be not to let either one use it.
Richard L. Zweig: We believe--
Thurgood Marshall: And that would be legal, wouldn't it?
Richard L. Zweig: --Yes. We believe that the school district could make the choice to close the system down to both groups, yes.
Thurgood Marshall: And that's what it does during the campaigning--
Richard L. Zweig: That is what it does during the campaign.
Thurgood Marshall: --during the campaigning period.
Richard L. Zweig: Contrary to what my opposing counsel has indicated, during the period of the campaign both groups are denied access.
Thurgood Marshall: That's on page 20 and 21 of the appendix.
Richard L. Zweig: That's right. It's request for admission 31, I believe. And the reason for that is probably that the communications system is a very effective system of communicating ideas between rival unions and their potential constituents, and what the IEERB board, the Indiana Education Employment Relations Board, is trying to do is equal the access of the two parties to the teachers within the system.
Sandra Day O'Connor: Mr. Zweig, as I understand your argument, though, you urge that there was a public forum created by virtue of the action in letting the Y and the Boy Scouts and so forth use it. So your position would be even if the school denied access to PEA that your organization would be entitled to access, right?
Richard L. Zweig: That is true. To the extent that the school system opens up that forum to anybody, to individuals, individual teachers, as in this case, to comment on matters which concern the school, we think that we should have the same access rights that they have, because after all, as this Court has held in Abood, the issues which are presented to the teachers and to the school system are largely political. Indeed, under Indiana law... and I'd refer the Court to the collective bargaining statute, Indiana Code 27.514 and 5. There are a number of items in there which the majority union is allowed both to bargain for and to discuss with the school system, and many of those issues, such as budget appropriations, such as class size, such as selection, assignment and promotion of personnel, are largely political questions. And what the school board has done by adopting this restrictive access policy has been to give one side of those debatable public questions a much better position with respect to advocating its point of view than another organization. And we contend that it has done so without any compelling reason whatsoever.
William H. Rehnquist: Well, your outfit could certainly mail to the teachers who are represented by your opposing labor group its views at their home address, couldn't it?
Richard L. Zweig: It could do that, but there are two problems with that.
William H. Rehnquist: Treated as junk mail?
Richard L. Zweig: Pardon?
William H. Rehnquist: Might it be treated as junk mail?
Richard L. Zweig: I don't believe so. The two significant problems with that are that we don't get the list of teachers and the addresses of teachers until November of the school year, so that during the critical period of time when we need to speak with teachers, a critical period of time--
William H. Rehnquist: When is that critical period of time?
Richard L. Zweig: --Early on during the school year.
William H. Rehnquist: Why is that critical?
Richard L. Zweig: Because when new teachers come in we would like to have the opportunity to speak with them, to talk about the issues which are presented to the school system.
William H. Rehnquist: To kind of organize them in a way?
Richard L. Zweig: In a way, to at least give a contrary point of view to that being expressed by the majority union. So we can't use the United States mail system effectively before that list is given to us, whereas PEA can immediately begin to transmit its messages the day that the school doors open. Secondly, we think that there is a much greater burden placed upon our exercise of free speech than that being placed on PEA by virtue of the fact that we will have to pay 20 cents a letter and they will have to pay nothing, and in addition to that will be able to use school personnel to get those messages to the teachers.
Sandra Day O'Connor: Mr. Zweig, in the USPS versus Council of Greenburgh case, the Court held that the United States mail system did not require us to have a compelling state interest test applied to any restrictions placed on the use of the U.S. mails. Why is the mail service of the school district any different?
Richard L. Zweig: We think it's different because the private mailboxes which each of us has in our home are not, in terms of the court, a public forum. And the difference is that in that instance nobody else is granted access to those mailboxes except for the United States Postal Service. In that instance the Postal Service does not allow the Democrats to use the system, the mailboxes, or the YMCA's or the parochial schools or anything like that, as we have here. And what the Court said in that case is that they had no occasion to be concerned about that because it was an equal exclusion of all people from the system, whereas in this case it is a very selective exclusion of people from the system.
William J. Brennan, Jr.: Did I understand you to say that if you prevail here, the school board would be at liberty to deny both unions access to this?
Richard L. Zweig: We think that the school board can deny both.
William J. Brennan, Jr.: Even though it continues to permit the Boy Scouts and these others that are allowed to use it to use it.
Richard L. Zweig: Given the entrance of other people, other outside organizations and individuals to the system, based on that we would say we should have the same access.
William J. Brennan, Jr.: So that what you're saying is if you prevail, if the board is to exercise the option of closing down the system, it will have to close it to everybody.
Richard L. Zweig: Yes. It's all or none proposition from our point of view.
Lewis F. Powell, Jr.: May I ask whether the school board members are elected by the public?
Richard L. Zweig: Yes, they are.
Lewis F. Powell, Jr.: Is there anything in the bargaining agreement that would prevent the union from taking a position of favoring or disfavoring a candidate for election to the school board?
Richard L. Zweig: No. But we wouldn't have any opportunity to do that within the mail system. But the collective bargaining agreement itself is silent on that question.
Lewis F. Powell, Jr.: It's silent?
Richard L. Zweig: Yes.
Lewis F. Powell, Jr.: So at least in theory the union could take a position?
Richard L. Zweig: In theory the contract doesn't prohibit them from taking that position.
Lewis F. Powell, Jr.: Did the school board participate in this case at the district court level?
Richard L. Zweig: The school board did participate at the district court level, and they did participate in the Court of Appeals to the extent that they essentially joined in the position taken by PEA. They have not reasserted those positions in this point, and instead has left it to PEA to articulate and promote the so-called compelling state interests which are posited to justify this restrictive access policy.
Byron R. White: Would you take the same position if the school board denied use to all organizations except PEA?
Richard L. Zweig: Yes. We would take the same position, and the basis--
Byron R. White: You mean letting... if the school board thinks it's got a good reason to let its collective bargaining representative communicate with its teachers, so it lets that organization and that organization alone communicate with the teachers. You think that makes it a public forum and lets you in?
Richard L. Zweig: --We believe that because of the nature of the communications within that system, which are largely political, that... and we base that upon Abood and the City of Madison cases, as well as what is articulated under Indiana law as the subjects of bargaining and discussion. We believe that we... that it would be wrong for the school district to exclude one group of teachers which is as vitally concerned with the result of any discussion--
Byron R. White: Well, did you get any schoolteachers to join you in this suit?
Richard L. Zweig: --We do not have any schoolteachers other than those who are represented by the Perry Local Educators' Association.
John Paul Stevens: May I ask a question about your opponent's argument? He says, and I think quite properly, that you changed your position from that adopted by the Court of Appeals; that now you seem to rest entirely on the conclusion that this is a public forum. Do you agree that if it is not a public forum that you lose?
Richard L. Zweig: Again, we would articulate that to the extent that the system is used for political purposes, we should have the same opportunity to speak on those political issues as anybody else. We say that in the facts of this case the Court has... strike that... that the school system has opened up that system for all--
John Paul Stevens: Well, I understand you are arguing it's a public forum.
Richard L. Zweig: --Yes.
John Paul Stevens: Are you arguing separately, as I understood the Court of Appeals to hold, which is quite different from the argument, that even if it's not a public forum, you nevertheless are entitled to prevail under some neutrality approach?
Richard L. Zweig: Yes. We would also adopt that position on the basis of--
John Paul Stevens: And you think that position survives the Postal Service case--
Richard L. Zweig: --Yes. And the reason I say that is in the Postal Service case... I presume that's the Greenberg case--
John Paul Stevens: --Greenberg, yes.
Richard L. Zweig: --The Court made a strong point of the fact that the mailboxes there and generally in the country are not open to selected groups to use; that is to say, the Postal Service doesn't attempt to distinguish between individuals and organizations who may gain access to their private box and exclude some and grant access to others. So we don't believe that the Greenberg decision is in any way contrary to the position that we're asserting in this case.
Lewis F. Powell, Jr.: Counsel, I understood you to say earlier that you perceive this to be a limited public forum. It's certainly not the classical public forum. Are you claiming it's a limited one or an unlimited public forum?
Richard L. Zweig: We are claiming it is a limited public forum.
Lewis F. Powell, Jr.: Well, I think you should make that clear. This is not like a street.
Richard L. Zweig: This is not like a street. It's not like the parks. It is--
Lewis F. Powell, Jr.: It is not even like the university in the Widmar case we had here last term, is it?
Richard L. Zweig: --We think it's similar to the Widmar case.
Lewis F. Powell, Jr.: But there were over a hundred organizations allowed to use the building in that case.
Richard L. Zweig: But in this case there is no evidence that anybody other than PLEA has been excluded. That is the only group that's been excluded. Other groups have been granted access, and the school system has adopted no rules--
Thurgood Marshall: Well, you have to be careful with "excluded". Has any other one asked to be?
Richard L. Zweig: --We are not familiar with any group which has asked to gain entrance--
Thurgood Marshall: Well, that doesn't mean excluded, does it? You have to first ask in order to use the word "excluded".
Richard L. Zweig: --During the course of the proceedings in the trial court we attempted through discovery to determine who had been granted access and who had been denied access and a number of other issues; but our discovery was cut off on a motion filed by the appellants in this case, and so we didn't have an opportunity to develop that particular point.
William H. Rehnquist: Did you win or lose in the district court?
Richard L. Zweig: We lost in the district court.
William H. Rehnquist: Did you raise the lack of discovery as an issue on appeal?
Richard L. Zweig: Yes, we did.
William H. Rehnquist: Did the Court of Appeals pass on it?
Richard L. Zweig: No, it did not. It did not rule on that. It determined that the facts were sufficient to show a clear First and Fourteenth Amendment violation.
William H. Rehnquist: You really couldn't urge that as an alternative ground for affirming the judgment of the Court of Appeals, I suppose, because if it were found that the discovery were inadequate, it wouldn't be an affirmance, and the judge would send it back--
Richard L. Zweig: That's correct. The point is that PEA has complained that we haven't shown a number of facts, but the stark reality is that we were prevented from showing those facts by virtue of the proceedings in the district court. Because the speech which is within the school district is, in our view, inherently political, we believe that it is an error as a matter of law for the school district to exclude one side of those political views and allow another side in. Now, the appellants in this case also have claimed that because of the alternative channels of communication available to us that our First Amendment right is in essence de minimis, and in that sense they followed Memphis, AFT and Connecticut, AFT cases, the Second and Sixth Circuit cases. But the only opportunity to get to that issue is if it is shown that the restriction here is a reasonable time, place and manner restriction. And it's our suggestion that the restriction here is not that because it is content and viewpoint-based, and it is, therefore, under the control and precedents of this Court per se, unreasonable. Additionally, the alternative channels of communication alleged to be available to us are really not very availing and they're not equally effective. They suggest that we can use the intercom system, but that is available only when school was out and the teachers are dispersed to the various activities or to their home. They suggest that we can use the bulletin boards, but in point of fact the record shows there's only one bulletin board, and that's at the Burkhardt School in all of the Perry Township schools. And they suggest that we can use the meeting rooms. We suggest that that's not a very effective alternative either, because if we can't tell the teachers what the meeting is about and we can't indicate the time and place of the meeting, that the fact of the meeting rooms being available is really not availing. Thank you.
Warren E. Burger: We'll resume there at 1:00. Just a moment, counsel, if you will. Mr. Chanin has waived his rebuttal, unless the Court has any questions. If not, thank you very much, Mr. Chanin.
Robert H. Chanin: 0 [Nothing.]