Warren E. Burger: We will hear arguments next in Moore against Sims, Mr. Young; you may proceed when you are ready.
David H. Young: Thank you Mr. Chief Justice. May it please the court. Today we are concerned with numerous sections of Title II of the Texas Family Court which is Texas’s effort to deal with the Law of Parents and Children. It's a codification obviously of many parts, it in part reflects in statute as a in case law as existed prior to its passage in 1973 and in part reflects what the legislature or what the case law in the absence of statute said the law was and it also of course reflects changes that the legislature made in the statutes and case law. Those various aspects of the family court have interplay in the sections which are before you here today. Some of the sections which we'll be discussing are matters of law that pertain to virtually any case in the civil courts of Texas and others are sections that pertain to rather more limited aspect of child abuse and still others are sections which have only to do with certain instances or certain procedures in child abuse. Because of the numerous chapters and sections involved, when I am making my argument, I will try to use more than merely numbers of chapters when I am describing things, for instance chapter 17, I will always try to refer to that as to the emergency protection provisions, chapter 14, I will try to remember to refer as a conservatorship or custody provisions, likewise chapter 15, termination of parental riots, chapter 11, which is involved here as well as essentially the wholly procedural chapter and chapter 34 is involved as not a judicial per se chapter at all, it's really an investigative agency kind of chapter. I would also like to utilize some of my time to very briefly state what the court below held because we are not appealing everything that the court below held and from reading the opposing briefs, it is at least my judgment that many of those briefs are on issues that are not before this court.
William H. Rehnquist: It is possibly to briefly state what the court below --
David H. Young: I hope so, I want to try, I think it's difficult and I certainly don't want to use that part of my time doing it. First of all, of course, the abstention issue we clearly are appealing. They held Section 1110 of procedural statute unconstitutional on its face because it failed to require an attorney ad litem for a child in any suit affecting a child under the Emergency Statute, the Conservatorship Statute or the Termination Statute. We are only appealing that as to the necessity for an ad litem at the emergency hearing, the chapter 17 hearing, we are not appealing it as to its impact on any of the other proceedings, whether for conservatorship on a permanent or temporary basis or on termination. They held in three sections, 1111, 1705, and 1706, that all were unconstitutional is failing to require an adversary hearing within 10 days of the emergency taking of the child. We are not appealing to any of those. They held section 1115 unconstitutional on its face as to the standard of proof saying clear and convincing evidence is required instead of preponderance, we are appealing that. They held 1702 unconstitutional and that saying, it was unconstitutional on its face, but saying that immediately, the statute says, a child that is seized will immediately will be taken before a court or this agency seizing the child will immediately obtain a judicial sanction if you will to have possession of the child. They interpreted that to mean that the, that immediately is the “very day” of the taking we are appealing that limited aspect of the holding. They said that 1703 is unconstitutional on its face and that it fails to require all reasonable efforts to serve notice to one of these suits. We are not appealing that and we would frankly characterize that as one of the more gratuitous holdings of the court below, because there is no question that all reasonable efforts should be made and were made in this instance to notify the parents of the proceedings and in fact they had actual notice. They held section 3405 unconstitutional on its face as failing to require notice and a hearing for the parents before any psychological or psychiatric examination of the children, we are not appealing that, that wasn't even an issue in this case. Physical examination was an issue in this case and the court made no adverse holding as to that. They also held the child abuse neglect reporting enquiry system unconstitutional as applied and that the state had provided for a central registry of cases of suspected abuse and those cases on that registry were not limited to instances in which a judicial determination as to the abuse have been made. Finally they held 3408 unconstitutional on its face. That being the confidentiality provision and held it unconstitutional and so far as it did not provide for parents to be notified of the contents of the records that the state had on them, alright or requiring the states upon request to reveal the contents of the record except for informance, we are not appealing that. One other thing, which I think is confusing, also is that the Woods case it's my understanding it's not before this court. It was consolidated on a limited issue of the right of indigence to reporting counsel and in their decision in this case and the judgment the court below said that consolidation was ill-advised. We did not in our brief anyway cite to you what became of that case. The court allowed the state courts to proceed and in December of 1976 some two or three months, after the decision in this case was rendered the Court of Civil Appeals reversed the judgment and restored the children to Mrs. Woods that decision is reported at 545 Southwest second 573, that reversal was based on an insufficiency of the evidence kind of question. That I hope gets me into what I would like to talk about regarding abstention, because in that case the Woods case the State Courts were allowed to function, were allowed to go ahead through their normal processes and what happened is that the parents want to talk about abstention, it's also necessary to spend just a little bit of time on a chronology of the events that occurred. On March 25th 1976 there was a report of child abuse at the school in question of Department of Human Resources worker went their to investigate it and the children were taken to a child welfare clinic. The next day, the very next day, not the very day, but the very next day, a temporary order was obtained. Day after that Paul Sims who is the subject of this litigation really, excuse me was hospitalized where he would remain for some 10 days. On the 5th of April the first --
Thurgood Marshall: On March '71.
David H. Young: I beg your pardon.
Thurgood Marshall: On March ‘71 they went to the judge for the modifying the -- .
David H. Young: No, Your Honor there is, according to the deposition of Judge Lowy, which I will discuss; they did attempt apparently to file a motion to modify. It's my understanding that the District clerk said judge Lowy was not present, he being the judge which had entered the temporary or emergency order a few days before that and went to see another judge to see that he would hear it. He evidently said he did not want to hear it, and that led.
Thurgood Marshall: This is not the only point that's not clear.
David H. Young: That's right, that's why I am taking some time to go through it in the first place. On the fifth however Judge Lowy was around and a hearing was had in his court room. The fifth was the 9th day of the duration of the 10-day emergency order. At that time plaintiffs below had pending a habeas corpus action, and a hearing was conducted at the bench, if you will, all of this is explained in some detail in Judge Lowy's deposition and then motion to modify was never mentioned to him at that time.
William H. Rehnquist: You said habeas action, a state habeas action?
David H. Young: Yes. The --
Potter Stewart: Was the initial order which was a state court order was it not?
David H. Young: Yes.
Potter Stewart: Was that entered in any pending proceeding which actually had been brought?
David H. Young: Yes, the proceeding -- there were two state court proceedings before the Federal Court hearing on this.
Potter Stewart: Briefly can you tell us what those--?
David H. Young: Yes, the first one was the one that I mentioned on the 27th.
Potter Stewart: Brought by whom.
David H. Young: Brought by the state, I've forgotten the name of the individual, who signed the complaint but it was brought by the state, this is a day after the children were picked up at school. They were in --
Potter Stewart: So it was a state agency -- a proceeding brought by a State agency?
David H. Young: Yes.
Potter Stewart: And who were the defendants or the respondents?
David H. Young: It were the Sims, the parents, yes.
Potter Stewart: Now that's one--
David H. Young: That's one, the next one was as a result of this hearing on the 5th in Judge Lowy's court wherein the motion for habeas was pending, also that was on the 9th or the 10th day I forgot which of this 10 day order. Questions as to venue of these proceedings --
Potter Stewart: Well who brought the second proceeding?
David H. Young: This, the second proceeding was brought during a continuance of this hearing. The hearing was convened at 10:30 in the morning as a result of the hearing Judge Lowy had substantial questions as to venue of these proceedings in his mind, it was discussed by counsel for both parties before the court, and he said he will recess this hearing until 5:00 o'clock to give the parties, both parties an opportunity to file whatever it is they're going to file. As a result of that at 4:00 or something, the state filed a second suit.
Potter Stewart: In the same county or different?
David H. Young: In Harris County, the same county.
Potter Stewart: The same county.
David H. Young: And as a result of that second suit—
Potter Stewart: Naming again the Sims as --?
David H. Young: Yes, as a result of the second suit, the Judge took an official cognizance if you will of the venue issue, transferred that second suit to Montgomery County and transferred with it the habeas action on which no action had been taken.
Potter Stewart: Who brought the habeas action?
David H. Young: The Sims.
Potter Stewart: The Sims. So we have three proceedings pending before anyone went into Federal Court?
David H. Young: You could even say four if you wanted because at some point the Sims also brought -- attempted to bring an original habeas action I believe in the Court of Civil Appeals which is an intermediate court, which they refused to take, there having been no decisions below.
Potter Stewart: They didn't succeed.
David H. Young: They didn't succeed. But as I understand it that's not the question.
Potter Stewart: No, well I am trying to get the actual pending state proceedings, were the two brought by state agency, both in Harris County one transferred to some other—
David H. Young: Montgomery County.
Potter Stewart: Montgomery County and the habeas proceeding brought by the Sims in Harris County also transferred to Montgomery, is that it?
David H. Young: That's right.
Potter Stewart: Now the initial order was entered in that first State agency proceeding was it?
David H. Young: Yes.
Potter Stewart: I see.
David H. Young: That order pursuant to chapter 17 was good for only 10 days and this subsequent hearing that we are talking about not an ex-parte hearing it's the first that had been -- when the order was obtained.
Thurgood Marshall: Was it on the 9th?
David H. Young: It was on the fifth so it would be the 9th day I think yes, which is why I think he said, he gave him till 5 o'clock to get whatever additional pleadings, motions they would have. That order expired by its own terms on the 10th day. After that 10th day, there was nothing possible further to do so it's—
Potter Stewart: The proceeding in which that order was entered did not terminate with the expiration of the order, did it?
David H. Young: Well, that's a very close question and I think that's why the second proceeding was filed seeking temporary conservatorship and why it's that proceeding that was transferred along with the habeas to Montgomery County.
Potter Stewart: Well let me put it to you this way. In your abstention argument what state proceedings as pending do you rely upon?
David H. Young: We relied this to chapter 17, was filed before any proceedings of substance on the merits in Federal Court.
Potter Stewart: I am confused with these numbers.
David H. Young: I am sorry I said I tried not to do it.
Potter Stewart: Which state proceedings—
David H. Young: The emergency proceeding filed the day after the child was picked up.
Potter Stewart: That was pending you say when the federal suit was brought. You said earlier –
David H. Young: We argue that it's a question of definition of what the -- there was no order, there was order in effect by the county.
Potter Stewart: In any event, you say the second state agency proceeding which they brought in Harris, transferred to Montgomery that certainly was a pending proceeding—
David H. Young: Without question as was the habeas.
Potter Stewart: As was the habeas, yes.
David H. Young: At least probably three.
Byron R. White: Montgomery County had joined Harris on the north.
David H. Young: Yes, it's immediately to the north, I don't believe there are any counties in between, if you can't tell one from the other it's all urban.
John Paul Stevens: Is it perfectly clear the second proceeding was pending because the order was entered as I, in my notice showing April 6, and wasn't till April 19th that the federal case was filed and there's a more than a 10 day gap and had anything -- it was not another 10 day order that expired by its terms?
David H. Young: That gets to, that's what it was subsequently interpreted to be by the Federal Court. It was not clear from the statute that it would expire after 10 days.
John Paul Stevens: So if you didn't –
David H. Young: They didn't believe it would expire after 10 days, but we are not appealing that aspect.
Byron R. White: If you so view it that would no more have been pending in the first one, they'd be precisely of the same standard.
David H. Young: Oh, yes because I distinguish between a pending law suit and an order that's in effect. It wouldn't be necessary for any order to be in effect to have a pending law suit in state court if my understanding is correct.
Byron R. White: Well couldn't the other side argue that after the 10 days it ran on till April 16th that you retained custody of the children without any legal support for what you are doing?
David H. Young: Oh they did and that's what they did argue on April 5th in the hearing in Federal Court, whereupon we said accepting that we didn't use these words, but accepting that as a given then can we go file another lawsuit in Montgomery County and get all those cleared up, and it was our understanding that managing judge said, yes, whereupon we did on April, on May the 14th, whereupon the Sims is absenting themselves from anywhere where they could be served with a writ of attachment that went with that case but somehow mysteriously they must have learned about it because they returned to Federal Court on the 21st seeking a temporary restraining order against this, against the attachment. That hearings by the way which was not, it was some 16 days after the Attorney General's office and other defendants had entered and the appearance of some sort anyway and that hearing in Federal Court and we were never notified of the second, of the application for a temporary restraining order, there was no hearing conducted on it but it was granted.
Byron R. White: But, if you rely on the May 14th action, the new suit brought then that is a good -- almost a month after the federal case had been filed.
David H. Young: That's right and it's that aspect of the confusion why in our abstention argument, we put it under several different sections and dealt with the Hicks against Miranda kind of an issue whether a federal case has -- whether a State court proceeding has to be pending before there are substantial proceedings on the merit and in Federal Court as a separate issue. When we say there was -- we say we would have it either way.
Thurgood Marshall: The temporary restraining order you were -- but you were notified after it was granted.
David H. Young: Oh sure yes, without question. The effect of that temporary -- the relief that it had been sought immediately as a result of that second suit in Montgomery County was to have child placed with his maternal grandparents where he'd been staying a good part of the time anyway and where he'd been going to school, because they resided in Harris County. So somehow while absenting themselves from the prospects of service the Sims did find out, obviously seek out some relief from the State Court action. I mentioned earlier, the confusion that results because the Family Code contains different things. And one of the things that is so confusing in the first Federal Court hearing is the distinctions, are the distinctions between venue and jurisdiction on the one hand and the Family Court's concept of continuing jurisdiction on the other. The Sims has argued in the State Court that there was no continuing jurisdiction in that case in Harris County and therefore it should be dismissed. Well, continuing jurisdiction didn't have anything do to with this case. There was no proceeding already pending in Harris County, which would have been sufficient to give the Montgomery County Court continuing jurisdiction. Did I say there was no case pending in Montgomery County, which would -- to which the Harris County Court would have had to referred it back. What the Harris County Court did was take these arguments that both sides were making i.e. the fact the children and the parents both reside in Montgomery County and realize that mandatorily under the family court that venue was in Montgomery County while he did have jurisdiction. He did have jurisdiction and he says in his deposition it's sufficient to enter the show-cause order that he did and transfer it back.
Warren E. Burger: Mr. Young, you've only got a couple of minutes left.
David H. Young: I know.
Warren E. Burger: We have to get to the heart of your case.
David H. Young: Okay. Maybe the last thing I better say about abstention is it Hicks does away with this Hicks against Miranda in our view does away with the race to the court house theory. There's no issue that all the parties had actual notice in Federal Court of what the State intended to do. It was explicitly addressed to the Judge, we think he consented in effect to it and in any event there is no finding below of the kind of bad faith or harassment that would be necessary to overcome the abstention. There's not even a bad faith allegation in the pleadings, there's one harassment allegation as to the last proceeding in Montgomery County. No findings below about bad faith or harassment where the appellant they're not -- I realized I've used up virtually all of my time on only one of the three big issues of the case. I can't really address the other two in the remaining time. So I'd like to just reserve the remainder of my time and abstention will solve all the other issues if it's decided our way anyway. So I just like to reserve the rest of my time, thank you.
Warren E. Burger: Very well. Ms. Porter. At sometime, perhaps the earlier the better, it will be interesting at least to me to have you give me your version of the facts very briefly.
Windell Porter: Yes sir.
Warren E. Burger: What happened when was this child picked up, why, and then how soon after that were these proceedings begun?
Windell Porter: All right sir. I'll do that. Let me state at the outset sir that we realized and we submit and acknowledge that there's a compelling state interest in a state being able to pickup children in emergency situations.
Warren E. Burger: And you concede this was an emergency?
Windell Porter: No sir, I do not concede that this is an emergency, what we concede to sir is that there's an interest here on the part of the state that if in fact there were any children at any particular time now or even then in danger of any harm that that state has an interest in being able to take those children into custody.
Warren E. Burger: And primarily that's a matter for the State Court says it not?
Windell Porter: That particular yes sir is, what we are concerned about is what happened after the children were taken into custody.
Warren E. Burger: Why was this particular child picked up?
Windell Porter: Right sir. On March 25th just briefly, a referral was made to the Child Welfare Department. The child was picked up, three of the children were picked up not just Paul, the referral was only in respect to Paul. On March 26, there was a suit that was filed for protection of the child, supposedly with the referral only as to Paul; the suit was filed in relationship to all three of the children. On March 26th, the first ex parte order was issued by the Judge.
Warren E. Burger: How soon after they were taken into custody was there a medical examination?
Windell Porter: Sir, there was the child -- the children were taken to the hospital that very day.
Potter Stewart: Are these pictures in the appendix or those are the pictures were they taken that very day?
Windell Porter: Your Honor, I do not know when those pictures were taken. Those pictures were stipulated into evidence. I would assume and usually in the regular course of business that on when Child Welfare picks up the children that the pictures are usually taken at that same time, well, this is just something from me.
Potter Stewart: Was this about one child or all three in inspection?
Windell Porter: Sir, I believe that those pictures are only of one child. It is difficult to determine whether or not some of them are all three, but I believe that there only as to the one child and that is to the boy child Paul.
Potter Stewart: Well, they are rather telling aren't they, exhibits of child abuse?
Windell Porter: Yes sir.
Warren E. Burger: Were they not buttressed also by the doctor's examination, which said that there had clearly been a case of child abuse?
Windell Porter: Your Honor, they were buttressed by an affidavit by the doctor. However, there was never any testimony because there was never any court hearing. Usually, what occurs is when these particular suits are filed there's usually an affidavit presented to the judge by the social worker or by the attorney from Child Welfare, which states what the result of the doctor's examination is. On March 31st, the appellees went in and sought to modify the March 26th ex parte order. That order lasted no longer than 10 days. After the expiration of that order pursuing to the Texas Family Court, the judge was to do either one of two things. Order the children restored to the parents or direct Child Welfare or its attorneys to a file a suit affecting parent-child relationship. On March 31st the appellees went into court to file a writ of habeas corpus. I'm sorry, I left out one fact about the March 31st order. The motion to modify, they were not even allowed to file that particular motion. We feel that was effectively denying them any particular access.
Thurgood Marshall: What if the judge wasn't there?
Windell Porter: Sir, in the request for admission, it states and admits that the motion was stamped by the clerk. They say that the judge was not there, but then the motion was returned back to appellees. They were not even allowed to file to leave it there and to set a hearing for another time.
Thurgood Marshall: Is that clear?
Windell Porter: I believe sir that it is clear from the request for admissions that are in the --
Thurgood Marshall: That they weren't permitted to file --
Windell Porter: It is not clear sir from any testimony, it's just --
Thurgood Marshall: The court house was open.
Windell Porter: Yes sir.
Thurgood Marshall: And if they tended the paper with the right fees couldn't they file any paper?
Windell Porter: Supposedly sir, they were supposed to be able to file --
Thurgood Marshall: What do you mean supposedly, it's either permissible or not.
Windell Porter: Yes sir, they should have been able to file it however --
Thurgood Marshall: But were they.
Windell Porter: No, sir they will not commit to that file.
Thurgood Marshall: No, why were they denied the right to file.
Windell Porter: I do not know sir, the judge, he was not there.
Thurgood Marshall: Do I have to accept, is there anything in the record that shows that they were denied the right to file.
Windell Porter: No sir. Only the admittance --
Thurgood Marshall: Well, how can we take your word for it, if it is not in the record?
Windell Porter: Let me see this thing sir. Only the admittance that it was stamped and returned to the attorney for appellees and the usual practice is that if it's stamped it's received and if the judge is not there then what they would do would be to set a hearing on it later on. Then the writ of habeas corpus was filed on March 31st. The writ was denied, the judge would not rule on the writ, because he said that he lacked jurisdiction, because the appellees were resident of Montgomery County. After, on that same day sir, later on another suit was filed concerning -- affecting the parent-child relationship. That suit, along with the writ of habeas corpus was what was transferred to Montgomery County.
Thurgood Marshall: Put it straight away, the one that you didn't file?
Windell Porter: The one sir, of March 31st that the judge refused to act on sir.
Thurgood Marshall: Well, how could you do that then and filed?
Windell Porter: No sir. What the clerk refused -- I understand.
Thurgood Marshall: You see what confuses me? On one page, you say it wasn't filed. And the next page it said, it was filed and transferred to Montgomery.
Windell Porter: Yes sir. Let me see if I can clarify this.
Thurgood Marshall: Thank you.
Windell Porter: The March 31st order was not a writ of habeas corpus, that motion was a motion to modify the March 26 Ex Parte Order where the judge took custody of the children for the ten-day period. After not being permitted to have a hearing on the March 31st Motion to modify the March 26 Ex Parte Order, they then went back and attempted to file a writ of habeas corpus because at that time the Ex Parte Order pursuant to the Texas Code of Civil Procedure had expired because it only lasts for 10 days. After refusing to rule on the writ because of lack jurisdiction, then the case was transferred to Montgomery County along with a second suit that was filed on the very same day that the parents were in Court, trying to have a hearing on writ of habeas corpus. All of this was transferred to Montgomery County on April 5th. It's really interesting to know that although the parents had been in the Court room that there was still no effort to even notify them about the second Ex Parte Order that was issued. Front of that, that order stated that a show cause hearing would be held, that is stated in blank. It didn't say when, where, who or what. They were never notified of that order. They were never notified of that particular suit for whatever reasons. The appellee's filed their original complaint in Federal Court on April 19th. It is our contention that there was no pending state court proceeding in which to the appellee's could have litigated their constitutional claims by way of a defense.
Thurgood Marshall: It couldn't have been in Montgomery court?
Windell Porter: Sir, there was no action although it was transferred. There was no action taken by the Montgomery County court to set a hearing.
Thurgood Marshall: Could you have asked for it?
Windell Porter: Your Honor, as far as I know and from the record, they made attempts to ask for a hearing.
Thurgood Marshall: Where do we find that in the record?
Windell Porter: It's purely speculative sir. They talk about the people going from one place to another and trying to find out what was happening in Montgomery County.
Potter Stewart: Where those Ex Parte Orders appealable?
Windell Porter: No sir. They were not appealable; they are interlocutory decisions. Further as a matter of Texas State Law, if a person wants to raise the questions concerning the constitutionality of state of seizure of children, they cannot raise them even on appeal, and the case is in REW. We believe that this court's ruling in Gerstein versus Pugh is applicable in this particular case. There was nowhere for them to go.
Byron R. White: You mean there is no court in Texas that would entertain a claim that the children were unconstitutionally seized and retained by the state?
Windell Porter: Your Honor, the only thing that they would have been able to do and they would not had been able to raise their constitutional questions or the issues of constitutional law in either a writ of mandamus or a writ of habeas corpus, which are the two things because the writ of mandamus sir, would have dealt with whether or not the release sought, or whether or not the there was an abuse of discretion, say if a writ of mandamus had been filed for the clerk not receiving the motion to modify, or for the judge not to have any hearing on the motion to modify. And of course, the writ of habeas corpus will only deal with who had legal custody.
Warren E. Burger: Well isn't that -- wouldn't that have been a sufficient remedy at that point? Your question was whether the State of Texas had lawful custody and your client said the state does not have lawful custody and why couldn't you resolve the constitutional questions in that proceedings?
Windell Porter: Let me state this sir. On May 4th, they made another attempt for motion for leave to file a writ of habeas corpus to the Texas Court of Civil Appeals, and that motion for leave to file the writ of habeas corpus was denied.
Thurgood Marshall: Under Texas law you filed your original writs in the Court of Appeals?
Windell Porter: Yes sir. On this particular one.
Thurgood Marshall: Why? Is that statutory provision?
Windell Porter: Yes sir, it is.
Warren E. Burger: Could it not be filed in Montgomery?
Thurgood Marshall: I thought you filed it in a district court.
Windell Porter: They did attempt sir to file it in the district court in the Harris County District Court and that was where His Honor refused to even rule on the writ because of lack of jurisdiction because the family were residents of Montgomery County.
Thurgood Marshall: They could have gone with the Montgomery County, couldn't you? Couldn't you have filed a writ of habeas corpus in Montgomery County on May 4th?
Windell Porter: If sir, there was any pending proceeding.
Thurgood Marshall: In this particular case, could you have not file the petition that you filed in the Court of Appeals, couldn't you have filed it into Montgomery County Court?
Windell Porter: Your Honor, they had the choice.
Thurgood Marshall: Couldn't you?
Windell Porter: Yes. However they had a choice as to which court to go to.
Thurgood Marshall: And why didn't you?
Windell Porter: Because sir, as the statute permits, they chose to file the writ of habeas corpus with the Court of Civil Appeals, which had jurisdiction over the Montgomery County Court, since they were all in the same area.
Thurgood Marshall: Do you have jurisdiction over that case? Didn't it tell you it didn't have jurisdiction?
Windell Porter: No sir. The Court of Civil Appeals would have had jurisdiction.
Thurgood Marshall: Well, what did Court of Civil Appeals do to your petition?
Windell Porter: The Court of Civil Appeals refused to even let them file it.
Thurgood Marshall: Because it didn't have jurisdictions?
Windell Porter: Your Honor, no reasons were given for the refusal to file. There was no action taken in Montgomery County by the Montgomery County Court until May 14th of 1976, and then on May 21st there was hearing then set for May 21st. It appears so that the burden, the state was putting the burden on the family to go in and to accord themselves a hearing. The interest that the states sought to protect, there was no danger to them. As all of the time the children were in the custody of the state and I might point out that even though the case was transferred to Montgomery County where no action was taken in Montgomery County and it was transferred with a show cause hearing that the children remained in the custody for the entire 42-day period of the Harris County Child Welfare.
John Paul Stevens: Ms Porter like did Justice Marshall, I don't understand why nobody on behalf of the parents, when the children are out of their custody all this of period ran into the --- why didn't they go to the Montgomery County Court and say, hey, I want our children back.
Windell Porter: Apparently sir, and this is just information, this is not in the record. There was much stipulation and very little testimony. However sir, apparently, there were attempts to find out what was going on in Montgomery County. When the case was transferred, it was transferred by Judge Lowy, who was the Harris County District Judge with an order on it that a show cause hearing would he held. And in accordance with Texas Civil Procedure, Rules of Civil Procedure and the Family Code, that show cause hearing should have been held by the Montgomery County Court within ten days of the issuance of that order, however it was not.
John Paul Stevens: And when it wasn't and all after 10 days, it seemed to be an open and shut case to go and say we want our children back, and they were not being held with any lawful authority at that point.
Windell Porter: That's when the decision was sir to go to the Court of Civil Appeals.
John Paul Stevens: When I spoke to the Judge on the Court of Civil Appeals, said well why they don't go into the County Court in Montgomery County, I would have thought.
Windell Porter: Your Honor, no reason was given for that refusal to let them file that writ. We do contend that there was no pending proceeding, appellant relies very heavily on Younger versus Harris. However --
Byron R. White: Counsel is your petition for habeas corpus in the record?
Windell Porter: Your Honor it is on the docket.
Byron R. White: But the –- what were your allegations in your habeas corpus petition, do you remember? Didn't you allege unconstitutionality in your habeas corpus petition?
Windell Porter: No, sir. I will have to speak sir, I was not counsel at that state, I will have to speak from my conversations with the attorney --
Byron R. White: Have you ever read the habeas corpus petition?
Windell Porter: Yes, sir, it just states briefly that, that the children were wrongfully in the custody of the Harris County Child Welfare, the constitutional issues are not raised, and I would think sir that --
Byron R. White: And they could have been though, I suppose right there, it might have been denied but you could have raised, you could have alleged them I suppose.
Windell Porter: Yes, sir. They –-
Byron R. White: And if it had been denied you could have appealed.
Windell Porter: They could have been raised, however sir, general as far as writs of habeas corpus are concerned it just deals with custody and he has the right to --
Byron R. White: I know, I know, but one ground for alleging as the Chief Justice suggested to you, one ground for claiming illegal custody would be that the state was violating the constitution by holding the children.
Windell Porter: Yes sir, except that at that point and even at the point of the Court of Civil Appeals writ, there was no pending state proceeding both of the --
Byron R. White: Except that one.
Windell Porter: Both, the first one, but on May 4th when they filed in the Court of Civil Appeals. There was no proceeding that was pending, in order for them to avail themselves of and I would think that the Younger doctrine and those related cases at least contemplate that the individuals, that the litigants have some reasonable way, some means, some real valid means of being able to raise their constitutional issues. I'd like to speak a little about the CANRIS statue and that is the process that the state gathers information concerning abuse or alleged abuse of children. This statue does not provide for the persons even finding out what information is alleged. There is no opportunity there for the persons to correct the information.
Byron R. White: Ms. Porter I understood your opponent to say that although the Court held that aspect of the statue unconstitutional they are not appealing that holding, is that right?
Windell Porter: I understood sir, that and it could be that I misunderstood him, I thought sir that he was saying that they were not appealing that section of Chapter 34, which that deals with.
Byron R. White: Failure to give notice to the parents.
Windell Porter: The failure to give notice to the parents, but that failure to give notice to the parents sir that he is referring to is the failure to give notice to the parents when say child welfare is going in and requesting an order, which could issue without notice and without a hearing to have either the children or the parents examined. And I thought that, that was what he was alluding to. I do know that the state has put in their brief that CANRIS does not injure persons. We feel that it does because there is no way, there is no opportunity for them to correct any information and we would think that there should be provided at least some type of opportunity.
Warren E. Burger: Well up to now you haven't given me any linkling of why this matter could not have been settled in the State Courts where custody of children is normally, the kind of problems that are settled there. Up to this point, I haven't any idea of why a Federal Court should be in this case at all.
Windell Porter: Your Honor, the reasons are because there was, there was no pending action, both of the orders had expired. The Montgomery County Court although they were bound to have a show cause hearing within ten days and I would say even the Harris County Court would be bound, since it was the judge in Harris County who issued that ex parte order and the show cause hearing. That those are the reasons why it could not be resolved, there was nothing there, sir.
Warren E. Burger: Well I confess I can't escape the feeling on this record including the reading of the opinion of the United States District Court, that some people were more interested in a constitutional case than in trying to do something to take care of these children.
Windell Porter: I do not have any knowledge, sir of whether or not that is true, it just appears to me that the state with all of it's resources were putting the burden on the appellant, the appellees to raise or to find ways of having a hearing. There was a total of 42 days here, that transpired. The only hearing that was held was the one on April 5th in which the case was transferred from Harris to Montgomery County.
Thurgood Marshall: From that moment on, did you ever go to the Court House in Montgomery County for any purpose?
Windell Porter: Your Honor, I will just state what has been relayed to me. As far as I understand and it is not in the record. Unless it is in the deposition of Ms. Gladys Goffney, who was the attorney at that time, that efforts were made to find out what was going on in Montgomery County.
Thurgood Marshall: But that doesn't answer my question. My question was did anybody represent these children, the parents or anybody in the family, at anytime go to the Court House where this case was transferred and ask anybody anything?
Windell Porter: Your Honor, I cannot say specifically from my own knowledge that happened in respect to the parents. Let me state as in respect to the children that had an attorney been appointed to represent the interest of the children at the initial --
Thurgood Marshall: The answer is nobody.
Windell Porter: No, sir.
Thurgood Marshall: Well --
Windell Porter: Not as to the parents.
Thurgood Marshall: Well you're saying all these, well I don't know about who didn't go, I want to know who did go?
Windell Porter: As far as I know, no one sir. I'd also like to point out that at that particular time, the only person, or the only persons whom we feel were adequately represented possibly at that time were the parents, because there was no attorney appointed and the Texas Statue did not require the appointment of an attorney to represent the children. Yes, sir.
Thurgood Marshall: Didn't the parents come and get it there?
Windell Porter: Yes sir, except that here –-
Thurgood Marshall: So they could have gone, the case would have gone to Montgomery County.
Windell Porter: They could have sir.
Warren E. Burger: Where are these children now?
Windell Porter: The children sir, were ordered, returned to their parents by the Federal court.
Warren E. Burger: I suppose -- how long were they in the custody of the State approximately.
Windell Porter: They were in the custody of the State for 42 days.
Warren E. Burger: 42 days?
Windell Porter: Yes sir.
Warren E. Burger: By that time they probably were healed of the very serious wounds that are shown in these photographs.
Windell Porter: Your Honor, I would like to point out that in the district court's opinion that the court does state that there was never any evidence to show as to whether or not there was any abuse by the parents. One of the things that happened immediately before the referral was made was that the father was at the school and he saw the child poking a pencil at a little girl and he told him to stop and the child did not stop and he paddled the child in the presence of the teacher. Now Paul has stated and this is not in the record that he was paddled after his father left by the teacher who wanted to paddle him some more and I would just once again say that there was no determination by the Federal district court and no evidence presented as to whether or not there was any child abuse and I suppose that that would be something that would be issued, an issue in any pending state litigation. Let me say this on the Woods case if I may. I know what has become of the Woods case because I represent Ms. Woods again after the Court of Civil Appeals returned the child, Child Welfare reinstituted an action against her and that case is now pending, there is a final hearing now pending that case.
Warren E. Burger: In Federal court or State court.
Windell Porter: In State Court sir. And I think that, the other thing that, the other reason why habeas corpus or any remedy say if there had been any pending proceeding would not be available was because in Texas by statute the ex parte orders maybe stepped, in other words if one goes into court and obtains a restraining order or an ex parte order, the statute fails to say how many you can have, however appellants have conceded to that affect and they are not contesting that, but that was one of the things that was an issue at that particular time because the court at that time had not made a determination as to whether or not the stacking where one order could be issued immediately almost after another order had been expired was unconstitutional either on its face or as applied. The other thing is and I think that what's happening with Mr. Woods is that this shows the likelihood of what may reoccur again. This is not an isolated instance. Appellant stated that the children are presented to the court. They are not presented to the court, there was no presentation here. As I said before we are not saying that if in the event that there is child abuse, that children should not be taken into custody but we are hoping and we are saying that should they be taken into custody then because of the fundamental rights involved because of the reciprocal rights between parents and children that a hearing should be held and that hearing should be held immediately in order to make some determination as to whether or not there is any validity say to the referral. This was not there, by immediately sir, I would say as soon as practically possible.
Byron R. White: Well the court below held the same day, isn't it?
Windell Porter: Your Honor if I may, there were two judgments and yes they did hold sir the same day. However in the appendix, in letters passed between the appellants and the court, it does state and it does interpret that immediately or the same day has been interpreted and agreed to be 24 hours. The Texas Department of Human Resources has gone as far as issuing directives. I myself try these cases and we know that they have these hearings within 24 hours.
Byron R. White: Suppose they picked up on Saturday night, when should the hearing be held?
Windell Porter: Your Honor, there are two answers to that question. One would be I suppose that because of the circumstances involved it should still be immediately. The other would be to have the hearing on the next business or the next court day but it should be as soon as practically possible.
Warren E. Burger: While your time --
Windell Porter: I beg your pardon sir.
Thurgood Marshall: Conroe is where Montgomery County is?
Windell Porter: Yes sir, Conroe is a city in Montgomery County. Okay thank you. For those reasons I would ask that this court affirm the decision of the three judge district court.
Thurgood Marshall: Do you have anything further Ms. Porter?
David H. Young: Yeah.
Potter Stewart: Before you start, do we by chance have any of the State Court appealing today, the State court proceedings in the file here?
David H. Young: Not that I recall, I recall that the docket sheets are something were entered into evidence at the first Federal court hearing but I don't recall that the pleadings themselves were entered.
Byron R. White: I would have thought that might have been quite relevant to abstention issues to what the pleadings in the State courts were. Well, but you don't think the petitions for habeas corpus for example ever got into the record in the Federal court.
David H. Young: Not that I recall.
Byron R. White: I suppose they are available.
David H. Young: Oh, certainly.
Byron R. White: And I suppose you have copies in your own files of the pleadings in the state cases that were filed by the State.
David H. Young: I have a five door file cabinet full of the things and I am sure it's in there.
Byron R. White: And you were probably served with the petition for habeas corpus too.
David H. Young: I don't believe so. Well, there are many things in this case we've not been served with and I have no recollection.
Byron R. White: So you have ways apparently. We were interested in getting those pleadings as its --
David H. Young: We could obtain them some how and submit them to the court.
Byron R. White: I think it'll be very good, it was an inquiry.
David H. Young: I like the –
Byron R. White: Well would you undertake to get them.
David H. Young: I will.
Warren E. Burger: The entire file.
David H. Young: Or files as the case maybe. Our files there maybe more files.
Warren E. Burger: Not your files. I want just the files in the original records.
Byron R. White: I am interested -- for myself, I am interested in the State's pleadings, and any answers to them in the State cases and in the petition for habeas corpus that was filed.
David H. Young: State's pleadings are in the record.
Byron R. White: In this record.
David H. Young: I believe so.
Byron R. White: Well not in the printed one --
David H. Young: Not in the appendix but they are in the record, I understood the entire record is in there.
Byron R. White: Well the entire record of the Three Judge court is here.
David H. Young: Yes, I believe the State's pleadings are there, I just do not specifically recall that the habeas --
Byron R. White: But you don't make the Federal habeas petition is here.
David H. Young: I just now have, I am just reluctant to say this because I can't specifically remember like I do remember the State's pleadings.
Thurgood Marshall: Now did you, did you get that from the County --
David H. Young: I can get whatever files Harris or Montgomery County have, I assume that --
Byron R. White: Perhaps we should examine the record here and then perhaps request from counsel copies what we need.
David H. Young: Whichever be satisfied. The answer to one of the questions about an open and shut case on habeas after ten days is yes. When an order expires by the statute or by its own face, habeas, there is no need to, you can draft a habeas petition in any form you want and when.
Potter Stewart: But not in the Court of Civil Appeal.
David H. Young: But not in the Court of Civil Appeal, likewise a mandamus action for instance against a clerk would be brought in the District Court against a judge, it can be brought in the Supreme Court with original jurisdiction, you just have to get in the right place. The issue as to why counsel at this argument right here, kept saying that the cases were transferred from Harris County to Montgomery County because Harris County didn't have jurisdiction, that's not why they were transferred. They were transferred because Harris County didn't have venue, Harris County did have jurisdiction, all that, all the rationale for that is in Judge Lowy's deposition, which is also in the record in this case.
Potter Stewart: Mr. Young Section 10 of the judgment says that Section 3408 is unconstitutional on its face and so far as it fails required reports and records of child abuse and neglect and so forth, he made available to the parents the subject of investigation, do I correctly understand you are not appealing from that.
David H. Young: That is correct we are not appealing that. Instead of answering some of the questions, the pictures are all of one child, Paul Sims. Two were taken by the Child Welfare worker. Three, by the police officer at the hospital, I don't recall, which is, whether it's two and three or three and two, but they are all of the same child, all within a very short span of time. The result of the Federal Court taking the view it did on abstention is of course that appellees get to litigate their constitutional claims, but nobody ever gets a hearing on the merits about what happened to this child or these children. That's what the state was after, that's what the state repeatedly tried to get before the Federal Court. The state even asked the Federal Court to being there and seeing how things were going, they even asked the Federal Court to appoint an ad litem for the child and it was denied, saying in affect why don't you apply the same standard to yourself that you want us to follow with regard and the court didn't do it. With regard to the question of the motion to modify, appellants didn't have anything to do with that. The appellants are not the judge nor are they the District Court, normal procedure in Texas is if you file a pleading that requires a hearing is that would you go to the judge; any judge that was there in Harris County could have heard it. It was true apparently that the judge that was there was reluctant to hear it, but there is no indication whatsoever that appellees went to him and asked him to hear it. There is no indicate, all of the evidence is to the contrary that they fled Montgomery County to keep from having to hearing. They said there is no hearing where they could raise all the issues, well the last thing they wanted was a hearing in Montgomery County. They didn't go to work. The didn't send the kids to school and they couldn't be found. The issue of whether or not an emergency order is appealed below and submit is answered by appellees own case. The REW cite that I gave you earlier was in the Woods case, it says, at page 575 in volume 545 of Southwest Second. An appeal could have been taken from the emergency order even though the appeal would not have stayed the order citing Section 1707 of the Family Code.
William J. Brennan, Jr.: What is REW?
David H. Young: REW is the State Court version of the Woods case, which was temporarily consolidated with this one and is now no longer consolidated. It reversed the termination of criminal rights in that case, but it was on the factual insufficiency of the evidence. There is a split in the different Courts of Civil Appeals in Texas as to whether or not all such temporary custody orders are appealable or not.
Thurgood Marshall: (Inaudible)
David H. Young: I suggest it should and that's the place to resolve it and like this court one of the ways to get to the Texas Supreme Court is when there is a split in the circuit so to speak, that's where that issue should be resolved. With regard to CANRIS, the Child Abuse and Neglect Report and Inquiry System, the District Court didn't say, the District Court's opinion is not even internally consistent on this point, I don't believe, they didn't say we couldn't make the investigations. They didn't say we couldn't keep accusatory files. They said we could keep investigated files, what they said was, you can't store it and retrieve it electronically, that's all, that's all the opinion means on the Child Abuse and Neglect Report and Inquiry System and that is if we are here talking most of our time as we are about comity and federalism and allowing the state to go about its own business, if you can't keep your files in the medium over your own choosing, then the Federal Courts have gone to meddling.
Byron R. White: Could I ask you. Was the petition for habeas corpus that was filed initially and then transferred to Montgomery County, was that petition ever acted on? Was it ever denied?
David H. Young: No, the normal course in Texas is if someone files a petition asking for relief they go to the judge to the clerk and get a hearing on it, and the Sims filed that petition and never asked for a hearing as far as the --
Byron R. White: So it's still sitting there.
David H. Young: It is still there.
Byron R. White: Of course if the children were ultimately returned anyway.
David H. Young: And they were returned so long ago that it's problematic whether we could do anything about it.
Warren E. Burger: Well, that is moot now, isn't it?
David H. Young: That's one of our contentions, yes. The passage of time is just, we didn't ask for termination in the first place and when we were only seeking temporary conservatorship over child to try to give him some help while he needs it. Then once the time is passed where he needed it, there is not much point is us trying to do anything.
Warren E. Burger: Thank you, Counsel. The case is submitted.


Earl Warren: Number 78, Herbert -- Herbert W. Goldblatt et al., Appellants, versus Town of Hempstead. Mr. Newman.
Milton I. Newman: Thank you sir. Mr. Chief Judge, Justice, gentlemen of the Court. This is an appeal from a judgment of the Court of Appeals of the State of New York and it involves the constitutionality of an ordinance of the Town of Hempstead. I shall presently go into some of the details of statute, but in introducing the statute, I say to Your Honors that this statute prohibits the further excavation of sand and gravel under any circumstances in the Town of Hempstead where there's water. It prevents anymore excavation under water. Now in this case, the Appellants Goldblatt and the Corporation, he's a 100% owner of the Corporation, one is the operator of the business of excavating and the other appellant owns the property. It involves 38 acres of property in the Town of Hempstead in the County of Nassau in the State of New York. And the facts of this case, I believe, are not in dispute, certainly not the material facts upon which the decision in this case, I think rests or will elementally rest. There's no question about the fact that the excavation here started in 1927. Mr. Goldblatt's father was then the owner of this property and has been in continuous operation from 1927 down to the time that this case started in 19 -- from 1927 down to 1959 when this case started. That's I think 30 -- 32 years and during that time I must say, one year after it started, water was dry. So for 30 years or more, excavation has been taking place underwater in this under -- over these 38 acres. Actually now, the -- the water covers 20 of the 38 acres and that situation has been in existence since 1928 because the testimony without any contradiction is that one year after they started, as stated Your Honors, they struck water and pond or the water has been there. Now, I'd like to state at very (Voice Overlap)
John M. Harlan II: Are you still -- are your still doing the underwater excavation?
Milton I. Newman: No since the Judge -- not since the judge in this case granted the injunction in 1950 --
John M. Harlan II: I know, but I'm meant to be good as a practical matter as it has got an economic use?
Milton I. Newman: Oh yes -- well, certainly yes sir. I say certainly because the only testimony in the case is that the deposits there have not been exhausted. He was working right up until the time of the injunction below. Now if Your Honor please, I'd like to say at the very beginning something about this Man Made Lake because I think this was the thinking of a lower court that tried the case and you'll find throughout the brief here such words as used as is if this is a -- a sprawling crater. This is a -- there are other pits like this where children drowned. I don't know about other pits. I'm talking about this pit and I'm talking about this record on appeal. If Your Honors please, we now have 38 acres, 20 acres as I say, covered with water. The depth is 25 feet deep average, over the 20 acres. Some places as deep as 40 feet. This lake and there are pictures here. The pictures of the original exhibits are in the Court. They're not printed in this record but the exhibits number 6 and I ask Your Honors to notice that it's the number six pictures which are ours and those pictures show a lake no different from a God Made Lake. I mean, I'm talking about Central Park in New York or Prospect Park or Lake Whitney or some lake in -- in Washington. It's water, it's a lake and it's covered, surrounded, the whole 38 acres by a six foot fence surrounded on the top with three strands of barbed wire. Now if Your Honors please, I tell you in 1927, as when we started to excavate and it wasn't until 1945 that this Town of Hempstead even said we had to have a fence. 1945 did come around and there was a fence put up and that fence is the six foot fence with three strands of barbed wire on the top of it. And the 1945 statue is a regular tort statue, it talks about the slanted slope and it talks about the width of barb and it talks about the fence. Those are regular -- regulations which we complied with in 1945. No proceeding was brought against us under the 1945 ordinance. It's a 1948, I'm jumping just for a minute, that we have the amendment of the ordinance which we challenge here as being unconstitutional. Now if Your Honors please, in 1956, is the time that the Town of Hempstead first got after us. So I may say, get after us, I mean first bought their first legal proceeding and that was a proceeding in Nassau County to prevent us from further excavating under water on the ground that it was violation of the Zoning Act and that case was tried. It was tried before Mr. Justice Hill in Nassau County and as an appendix to -- in my brief, we have an opinion and a judgment in that case and briefly summarizing that opinion in the judgment, the Court says that he finds -- I'm going to quote -- read one sentence, he finds that the defendants, that's the appellants here are now and have been since 1927 conducting a prior non-conforming use on the premises and they have made such a substantial investment and improvements in the business to warrant the continuance of this non-conforming use. Now when the judgment was entered in this case, this is clear sailing, the Judge says, “We have a right to go on” and we did go on in 1956 and in 1957. There was no appeal taken from Mr. Justice Hill's decision that we had non-conforming use, but the town brought another action in 1957. I only say this by way of completion because that 1957 action is not important here. In 1957, they came around and again brought us in the court on the ground that we were trying to then extend our excavation activities to the extent of entering into some other allied business and I think the Court properly said, -- or at least it said the Court held -- the New York Court held that that was not a proper extension of our non-conforming use. I only state that in passing because it has nothing to do with my opinion now with our ultimate decision. Now, comes 1958, and in 1958, no appeal from the decision of Mr. Justice Hill, but the amend -- but the enactment of the 1958 ordinance with these provisions particularly Sections 4 (h) and 4 (j) which we challenge in this proceeding in this Court this time. Now, if Your Honor pleases, I might say that contemporaneously with the making of the new 1958 ordinance and before this action in 1959 was started, there was some talks between the town officials and the people that own this property, the appellants in this case, a possibility of taking this property, of paying for the property because it was going to be used in connection with that drainage system and actually in this case, is Exhibit C, that contained, that consists of a drainage map which shows actually the plan of having the surrounding territories water drain ends to this Man Made Lake. But nothing came of the -- of the -- of the meetings between the town and -- and the people that owned the property and since the record doesn't contain the material, I won't go further and say why I think they didn't continue with the talks as far as condemnation is concerned but they didn't condemn it. What they did instead is to pass the 1958 ordinance and then bring this litigation. Now, if Your Honor pleases, it is so important because of the element challenge of the question of whether this statute does prohibit that I must read you only two lines, that Section 4 (h) which does prohibit. That's on 47 of my brief, this paragraph Section 4 (h) of the ordinance. It says no excavation shall be made below two feet above the maximum ground water level at the site. Simply translated and there can't be dispute about this, all it says is that you can't dig below water level. A matter of fact, you can't dig below two feet above water level. Put it another way, you can't dig under water. They can't be anymore water excavation here, no more hydraulic dredging. One of the -- one of the words that appellee used he says water table. Maybe, he doesn't like the word water level, but he talks about water table. Now, there's no question about the fact as I told you in the beginning, that since 1928, this property has been 25 feet below water level. We definitely violate the ordinance. There's no question about it. We can't comply with the ordinance. The ordinance says, “Don't dig below water level.” We dig, we dug that hole below water level 30 years ago. The statute goes on further and 4 (j) says, “Not only may you no longer dig below water level,” it says, “You got to fill up the hole that you made” and this hole is 20 acres wide. And -- and the testimony of the Town's witnesses is that one million cubic yards have been removed from these 20 acres. And we are told in section 4 (j) of the statute, that's a little longer, but that's on page 47, I'm not going to take the time to read that. That says, “When the earth is been removed from the pit excavation area, it must be refilled with clean, non-burnable fill, containing no garbage, they give you all the specifications from the clean fill.” They want a million cubic yards of fill to be put back into this 20 acres which we removed legally.
Hugo L. Black: Is that phase of the case necessarily before us?
Milton I. Newman: It's definitely before Your Honor pleases because the fact that we cannot only -- most of the cases in this Court are only on prohibition. We are not only -- no longer allowed to excavate, we are told to put something back. I said in my brief and I've tried to read every applicable case that I never saw a statute. I never saw a town or -- or municipality or a legislature which had the temerity of telling you not only to stop but put back what you legally took out and my friends have not answered me on that. Apparently they have never found --
Hugo L. Black: (Inaudible) enforcement provided for the (Voice Overlap)
Milton I. Newman: If Your Honor pleases, is not only injunction but Section 10 says, “There's a $500 fine” and also not the criminal penalty and each week's -- apparently the section 10 of the statute says, “A violation of this statute or any section shall be punishable by a fine of not more than $500 or imprisonment for a period not exceeding six months for each offense or by both such fine and imprisonment.” Each week of continued violation shall constitute a separate additional violation.
Hugo L. Black: Has there been a threat to enforce the criminal part of that?
Milton I. Newman: Not -- not -- not so far as I know. I mean, they brought this injunction. Presently, they're satisfied with the injunction. Now of course we haven't (Voice Overlap)
Hugo L. Black: The injunction, do they seek a mandatory injunction to tell you to refill it?
Milton I. Newman: Well, yes sir. That's part of -- that's part of the -- that's part of a judgment in this case. The judgment in this case says that we have violated the statute in various ways and one of the ways is (Voice Overlap)
Hugo L. Black: But does it say you have to refill it?
Milton I. Newman: Yes.
Hugo L. Black: Does it say that?
Milton I. Newman: If Your Honor pleases, it says that the defendants have failed to refill the pit -- excavation of course, there have been those places where the earth has already been removed to the maximum extent allowed under the law. Now, if you're asking -- that's the extent. Let me answer your question that way sir and I can say to you that of course these people haven't done anything by the fact since this case has been going up into the Court. But I dare say if this case is affirmed by this Court, I am sure I know what the town is going to do when we don't fill it up. Actually, we're never going to be able to fill it up. It will cost a million dollars at least –-
Hugo L. Black: (Inaudible)
Milton I. Newman: Excuse me sir.
Hugo L. Black: I was asking the question on the assumption that there might be a possibility the ordinance would be valid insofar as it looks to the future, but might not be valid in so far is it compels you to spend the million dollars?
Milton I. Newman: If Your Honor pleases, I must say to Your Honor that in the courts below, I didn't handle this from the beginning, but in the courts below, there was a section of the brief that said that maybe this statute is constitutional if you were -- as you apply to us, it doesn't talk about -- it doesn't apply to something that was -- that was dug before this ordinance was passed. That's right you see. There was a possibility of interpreting that way, but I didn't include the brief in that -- in that point in this case because it's been interpreted by all the courts below as applying to us. And as applied to us, my humble opinion, it must be unconstitutional because it is taking away our property without due process of law. It's not paying for taking away the privilege of further excavating as in requiring us to fill that pit. Now when Your Honor, I think I got Your Honor's question that if it were interpreted so that it did not apply to us, then of course, I wouldn't be here. I mean then (Voice Overlap)
Hugo L. Black: That was not -- that -- I said -- I didn't say it could be nor did I say I would favor it. I simply suggested that it might be possible the act would be constitutional in aspect in which it barred digging here for the future (Voice Overlap)
Milton I. Newman: That's right. It would be.
Hugo L. Black: But might not be constitutional in the aspect in which it sought to compel you to pay out money, to repair something which was legal when done.
Milton I. Newman: Yes sir. Now in the Court of Appeals, let me -- let me start by saying, we had a trial court sitting of course without a jury in injunction case who held that this was constitutional, mainly on the ground that it is regulatory. This is only regulatory. It doesn't prevent us from doing anything. All we got to do is comply with the statute. The appellate division, five judges affirmed without opinion and I might say to you in passing, if Your Honors please, that when I came to the case and made application of the appellate division for leave to go to the Court of Appeals, because I had no dissent, on the ground that there was a constitutional question there, the appellate division apparently didn't even recognize the fact -- turn me down they said, “There's no constitutional question involved.” I made the same application of the Court of Appeals for leave to appeal thereon the constitutional question and 24 hours later, the Court of Appeals says, “Yes, of course it's a constitutional question.” I don't mean those are those words. The telegram said, “You're allowed to appeal here as a matter of right because of the constitutional question involved.” In the Court of Appeals Your Honors please, there are two opinions. It's a four-three decision of the New York Court of Appeals. The majority of opinion written by Mr. -- by Judge Burke, says and I'm summarizing it now, that this is constitutional because and these words are taken out of the briefs in my friends, the appellees in this case. Of course it only requires minimum -- minimal safety requirements and all you've got to do is make an application and get a license to do these things. And it does not, I'm quoting now, it does not proscribe a further excavation. That's the reason I said to you if Your Honors please, that under 4 (h) when they say we can't go below water level, and we've been below water level and we've been digging until the time that they make the ordinance, they can't be in disputed as my judgment about the fact that it is definitely proscription, prohibition. It is definitely not minimal requirements of any kind. It is -- it is definitely prohibitory and confiscatory. Judge -- Judge Van Voorhis, in his dissenting opinion in which two other judges join him, reaches the conclusion as he states that this is no regulatory provision. This is no regulatory ordinance. This is prohibitory. Now, I like to come, if I may, to something about the approach of the majority opinion and also the -- of the argument of the appellee. I'm -- the argument about regulation brings them to the one rule upon which I think all the courts below who upheld in favor this constitutionality have depended and that is the question of the presumption of constitutionality. Now, the presumption of constitutionality, that's what Judge Burke talks about and he cites the Saxl case decided by this Court and he cites Engel -- Engelsher against Jacobs. Those are the two cases I remember, the main cases he cites there. He says, “Since this is regulatory, there was a presumption of regulatory -- of constitutionality and we didn't show anything to overcome that presumption.” I am now summarizing what is more at length written in my brief in deciding the cases that if Your Honors please, there is no presumption of constitutionality with respect to a statute which prohibits. It's only a statute which regulates that you'd have a presumption of constitutionality. I'll go one step further, if Your Honors please and say to you, meeting square on this question of presumption of constitutionality upon which the majority opinion relies and upon which the appellee mains -- makes their main argument that if there were such a presumption, the presumption in this case is certainly overcome by the fact that we have a non-conforming use of our property. And there are all kinds of cases uniformly hold that you cannot legally constitutional -- constitutionally deprive a man of his non-conforming use without paying for it. The decisions, there are a lot of current decisions and one of the most important I think is the most recent as the -- the term in this case, is the Harbison case in the State of New York in dealing with this question of how do you get rid of a nonconforming use which is a problem presented before so many of the towns of America there. How do you that constitutionally? And they have held that the only question is how much do you have to pay and the Harbison case said, “Well, you can tell them that in the future, they're going to have to quit doing the jump as that was what in the Harbison case and so you amortize over a period of years, their investment in the business. We don't have any such thing in this case at all. They don't pay us anything for telling us to quit our business and fill up what was legally made. Now, I say to you Your Honors we are -- if we have the -- if we had the presumption --
Hugo L. Black: Well, you (Inaudible), you suggest that, it reminds me that the -- probably some difference in what provision of the constitution are you relying on?
Milton I. Newman: I'm relying on the Due Process Clause of the Fourteenth Amendment sir and the case is directly at point is Pennsylvania Coal Case against Mahon. In that case, that case involved the Pennsylvania statute which said that you could not dig under a man's house because legislature said and the Governor said in -- in -- in the legislation of that -- in the making of that statute that it was dangerous to dig under a man's house. But the -- the land owner in that case had reserved the right to dig when he sold the house above to the -- to the people and that in my opinion was a much stronger case than this case where there's no -- no evidence at all of danger. I'm coming that in a minute. There's no evidence on the -- in that Pennsylvania Coal case, it would seem to me just as a layman that is pretty dangerous to dig under a man's house, but they said -- this court said, it's an opinion by Mr. Justice Holmes, he said certainly, it maybe dangerous in maybe the public will requires that you have this legislation but you can't do without paying the man for his property right, for his legal rights of excavating. He has the right to dig under -- under there by contract module only. In this case, we have the right to dig there because it's on our property. Now, may I Your Honors please, bring you what I consider to be the answer to this question of where does the danger and the nuisance come in? Where does that come in on a legal process here? Well, if Your Honors please in this -- in the Camarco case, that's a Court of Appeals case in New York, they held squarely that when you have a non-conforming use and we do of course, we do -- I don't have to argue that, we have it legally and that decision of Mr. Justice Hill. When you have that you cannot constitutionally come along with a statute and say that the man has -- you can't deprive a man of that constitutional non-conforming use, but the Court said, of course if there's a nuisance here, that's something else. It says it by a way of dictum. Now, let come to this question nuisance. On this question of nuisance, number one, in the Court of Appeals, the appellee here admitted on the argument that there was no nuisance in the operation of our underwater excavation. He challenges here the question of whether he made that observation. I'm not -- I'm not the one who's contesting you with them. Judge Jan Van Voorhis in his opinion, expressly states that on the argument in the Court of Appeals, counsel for the appellee admitted there was no nuisance, but I'll go further in that concession. I'm not going to decide whether Judge Van Voorhis or my friend here is right about that. I'm talking now about going beyond that. Number one, there was no evidence of nuisance. Now, who would have to prove nuisance in order to sustain this legislation? Certainly, the man that owns the property wouldn't have to show that his property was a nuisance in order to sustain the constitutionality of the statute. It would necessarily follow that the town would show nuisance. They have not only shown nuisance, but the proof in the record with respect to the fact that we have a six foot wire of fence that there has -- there was no evidence of a single trespasser, not a single accident, not a single death, not a single cave-in, no property damage and this is under 30 years margin, 30 years of operation, 15 years in which there wasn't even fence around there because we weren't required to have it fenced until 1945. Now I say the facts in the case certainly would show that there's no nuisance. There was no proof of nuisance. There was a concession of no nuisance and certainly there was no nuisance per se in the fact that there's water there. And I want to say a word about this water because this water you see, when they talk about sprawling crater, again the trial judge talked about sprawling crater. There's the implication that there's something, somewhere, something wrong about water, except that I'm page 11 of their brief, they have now said, we don't contend that there's any nuisance per se in water or in excavating so we don't have to contend with that. But there is that aura that -- that atmosphere of something wrong with water and I'm coming back and saying to Your Honors that because we have water, that doesn't make our -- our operations dangerous.
Hugo L. Black: Are you saying – does your argument amount to this? I want to get to as near as I can and (Inaudible) that New York City desired did not pass the law which provided that there should be no artificial lakes can 25 feet or eight feet deep in certain sizes in the period in anywhere in the city?
Milton I. Newman: Well, if they said that they couldn't be, I don't -- you mean in his privately owned property?
Hugo L. Black: (Inaudible)
Milton I. Newman: Well certainly you would -- yes.
Hugo L. Black: If they said that just couldn't be any under town. You're saying they can't pass a law like this?
Milton I. Newman: Well they could say, you got to put a fence around it. They could say you got to police it. They could say you got to do things to prevent people from coming in possibly if Your Honor pleases in Manhattan, they might say because as eight million people here but I would say, they couldn't say you can't have a lake in the middle of the town. At least they haven't done it.
Hugo L. Black: I understand that.
Milton I. Newman: I know but you --
Hugo L. Black: I was just trying to get a thought that maybe your argument could but as I understand it, what you're saying is that the town cannot pass a law which prohibits artificial lake within its boundary.
Milton I. Newman: That's right. I would say that would be so if Your Honor please. They could say you got to put a fence around.
Hugo L. Black: That would be taking people's property without due process of law.
Milton I. Newman: Precisely and in this case, it goes further than that because they took our business without due process of law. I mean --
Hugo L. Black: That's the other thing.
Milton I. Newman: Yes. I might say one -- I'm trying to conclude here in five minutes. The fact that the town now realizes that they made a mistake if they didn't bring any evidence of nuisances, they bring in by the -- they bring in one case one death, which they claimed took place in 1944. It's not on the record, it's not on the record, it was not in the trial, in 1944, before there was any requirement by the town itself, that it has a fence around it. I'm just going to say in passing, if they have a right to tell you about one death that took place in 1944, I have a right to tell you that by the police records of the City of New York, I discovered that 1960 with three deaths in Central Park and one in Prospect Park, but that has nothing to do with -- with eliminating a man's business. You Honors Mr. Justice -- Judge Van Voorhis said, “Automobiles kill people.” You don't get rid automobiles because people are killed. You regulate them, but you don't get rid of automobiles. Trichinosis brings on a disease but you don't get rid of selling pork because trichinosis may -- may come from the eating of pork. I want to say in passing Your Honor please, I think that this statute and I have argued in my brief also violates the ex post facto laws both criminal and civil. I think the Court has gone beyond the question of necessity of having a criminal law involved in order to have ex post facto but in this case, you got ex post facto as far as the criminal law is concerned, with those sections that I read you, Section 10 of the Act. In addition to that, I think that under the Fleming case, this is even a violation of the statute -- of the constitutional provision with respect bill of attainder because of the fact that we are the only operating sand pit excavation company in this entire Town of Nassau -- Town of Hempstead. And there's no question about the fact that the history of this thing in the 1945 proceedings in court and the 1946 proceedings with respect to try to get rid of this first by zoning and then talking news about condonation and then finally passing the statute means they pointed the statute directly at us. But I don't think -- well, I think that directly comes under that -- under the both those sections of the constitutionally. Your Honor please I like to finally say that when the Court of Appeals main opinion written by Judge Burke talks about the fact that there must be progress, I won't argue with them that it must be progress. I won't argue with them with respect to whether he think -- whether the legislator is right in thinking they'd like to get rid of our pit. There's no question they want to get rid of our excavation. For all I say to you is in the words of Justice Holmes -- Mr. Justice Holmes in the Pennsylvania Coal case, we are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shortcut in the constitutional way of paying for the change and that's all we're asking. I mean this is unconstitutional to say that you got a stop doing what you did for 30 years legally and then refill it up and not pay us for it. If I have a little time -- if I have a little time, may I take it -- may I have couples minutes on rebuttal.
Earl Warren: Yeah of course.
Milton I. Newman: On rebuttal I mean.
Earl Warren: Whatever you have, took him very much I'm sure.
Milton I. Newman: No.
Earl Warren: Mr. Mattison.
William C. Mattison: Mr. Chief Justice, may it please the Court. Just before he died and probably his last recorded interview, Leonard Hand deprecated his life on the bench with a comment to an author that he has spent his life Shoveling Smoke. And I suggest to this Court with humility and sincerity that difficult as the judicial process is, it becomes even more so, when a record has been made implosively, acceptable by its interpretation both and briefs and in oral argument. This morning -- this afternoon, I would like to address myself initially to some of the incorrect statements that have made -- have been made with respect to the brief, the proof of this case as it unfolded. In the first place through all the courts, and in six memorandum and specific language of our brief in the Court of Appeals in which we said, “Pits like this constitute a public nuisance.” We urged that this nuisance, that this pit was nuisance. And when Judge Van Vhooris asked me, “Did I contend it with nuisance.” I said, “Your Honor, I do not have to contend that it is a nuisance, because I do have the affirmative on this burden” and I respectfully submit that my inarticulate answer to him was because of some confusion which -- for which perhaps I was responsible. This pit is a nuisance. We maintain that the record shows it's a nuisance and we maintain in answer to Mr. Justice Harlan's question which opened the argument that there was no factual proof of confiscation in this record. The question Mr. Justice Harlan asked was, “Was there any economic use left?” Now, there is no proof at the trial at all, and the trial court so held in its long and comprehensive opinion that there were any available deposits that worth mining on the question of factual confiscation under the lake. There was a total failure of proof with respect to the 18 acres which remain above land, and the trial court pointed out that on this record, the appellant's may still mine that 18 acres. Now, this ordinance was a companion ordinance to -- an ordinance that was passed in the Town of Hempstead -- town of North Hempstead and Town of Oyster Bay, the -- the three towns making up Nassau County in 1945. And as the ordinances all of them in their identical declarations and in their regulatory provisions mandate, the danger to which the decree was addressed was a three fold, one. First to the threat of water pollution, to pollution of the water table, Nassau County draws all its water from this subterranean table, second, to the unsettling of houses surrounding the community of these pits and third and perhaps most important of all to the threat of drowning of little children in the pits. In -- a 1957 case, 12 years after the enactment of this ordinance which case we cite on our brief. The Supreme Court of the State of New York in Nassau County pointed out that it is a common knowledge that heretofore many lives of young children have been lost in these pits. Now, against this background --
Earl Warren: And these pits referring to what particular pit (Voice Overlap)?
William C. Mattison: The language in the (Inaudible) case was to unguarded, unregulated pits and of course Mr. Chief Justice, we take that as our starting point in the regulation of the pits to make this three-fold threat to our community. Now, the first suggestion is that this is a tailor-made ordinance and I think that the common knowledge to which the courts have reverted and our appellate division unanimously affirmed and our Court of Appeals referred to this refutes the suggestion that this was some criminal conspiracy in which this town engaged to eliminate this use by these defendants. Today, there has been another misstatement which has been a continuing one for the record that there wasn't total compliance with the 1945 ordinance as it was first enacted. The Court will look in vain to find support to this statement. The argument is made today that there is no presumption accompanying the enactment of this ordinance because it is a prohibitory one. I pause only to read the simple sentence from the Powell case which we cite in our brief which involved the total disability to manufacture (Inaudible) in which this Court said of a totally prohibitory statute, “Every possible presumption in favor of the validity of the statute and is in favor the validity of the statute,” and this continues until the contrary shown beyond a rational doubt. Now, the argument is made here today that there were drainage conferences. Again, the Court will not quite look in vain for competent -- comprehensible testimony of that conferred -- drainage conferences but will find these alleged conferences in colloquies and then openings in the record, and of course even if they were, our position is that the town does not have to pay the price on the exercise, the legitimate exercise of a police power. It does not have to pay the price of buy-in all of this, a public nuisance and a threat to the community. The suggestion has made again in counsel's brief and in his oral argument that we did not affirmatively prove that this was a nuisance. We point out that this burden traditionally does not belong to us and that the burden of establishing that the statute, the ordinance is itself unreasonable belongs to the assailant who attacks it. Now, the trial court held in its opinion that there was no qualitative evidence addressed to the unreasonableness of this ordinance and on this argument, it seems to me that there has been a concession that there was at least a legitimate area of legislation when in 1945, the three towns, these one included addressed itself to the dangers, the three-fold dangers which faced their communities. Actually as I understand the argument of the appellant's here today, it is like the argument that was made in the Saxl case which we cite on our brief where they do not question the power to legislate in this field, but where they complain that the steps that we have taken are not -- are not determinative of the best legislative judgment. The town, the appellant cites Pennsylvania against Maine. I think that this is the only case in which they really rely and the case itself I think is totally distinguishable. Mr. Justice Holmes put the principal reliance on the case on the two-fold aspect that it involves a private wrong and that it involve the impairment of a contract. On the issue of res judicata this question, the impairment of the judgment was raised at the subsequent action which was commenced under this ordinance and which is -- which as counsel in the brief show had been discontinued. When the question was raised under the prior enforcement attempt under this ordinance, the same argument was made namely, that the 1956 judgment giving them their vested right to continue this prior nonconforming use was res judicata and the Supreme Court held in an opinion the text that which we cite in our brief that the judgment in the nonconforming use case had no applicability. It did not constitute both, in this case in which the issues were essentially different ones although the parties were the same. The question was asked whether -- by Mr. Justice Black whether this judgment before this Court requires refill and the answer to Mr. Justice Black is emphatically no. The judgment contains no affirmative mandate requiring refill.
John M. Harlan II: Was it exactly a negative injunction against the digging?
William C. Mattison: The injunction Mr. Justice Harlan provides that they are enjoined from further operations at the premises until they do two things, until they obtain a permit which is required in Ordinance Number 16 and until they cure the violations.
Charles E. Whittaker: (Inaudible)
William C. Mattison: Yes it is Your Honor. I don't have the page before me but I believe that you are looking at the judgment. Yes sir.
Charles E. Whittaker: (Inaudible)
William C. Mattison: Now, if Mr. Justice Harlan, if you -- Mr. Justice Whittaker, if you please, this ordinance, this is the decretal paragraph does not affirmatively mandate them to (Inaudible) and refill the pit. That mandate is interwoven in that decretal paragraph requiring the correction of all these violations as a condition precedent to further operations of the pit.
Earl Warren: Well, isn't that -- doesn't that include filling it?
William C. Mattison: It includes filling it not affirmatively and independently of this judgment. It includes refilling it Mr. Chief Justice, if they should again endeavor to commence operations at the pit.
Hugo L. Black: Your construction is that it orders them not to do anymore work there unless they refill the pits.
William C. Mattison: Correct Mr. Justice Black.
Charles E. Whittaker: (Inaudible)
William C. Mattison: They've not suggested Mr. Justice Whittaker in -- in their case and the trial court pointed this out that there is no other available use for this property. There is no testimony whatsoever that this property cannot be equipped to some other valuable available use, and the under New York cases cited one by them and one by us, the Auburn Bay case and the City of Yonkers against Rentways Inc. The Court of Appeals is consistently held that this is affirmative burden which the assailant carries and which he must discharge and if the court itself will not sit to open and interpolate evidence and supply the missing evidence.
Charles E. Whittaker: (Inaudible) what the Court of Appeals meant by the statement on page 200 of the record, neither the injunction granted nor the ordinance proscribes any future excavation. The injunction merely conditions future operations upon the issues of a permit from the town and the corrections of certain violations of the ordinance.
William C. Mattison: If Mr. Justice -- if Judge Burke meant by that sentence that there was no prohibition of wet or underwater digging, he was obviously incorrect. As I read that sentence in the opinion he was addressing himself to this proposition that this is not a totally prohibitory statute that it permits and even in this case Mr. Justice Whittaker, the excavations of the remaining 18 acres at the premises and that is how I read that sentence.
Charles E. Whittaker: Well, could they under the decretal provisions of paragraph E on page 14 operate mine, if I may use that word, a remaining 18 acres unless and until they had first filled the pit?
William C. Mattison: They could not. The refill requirement makes them -- mandates them to fill a pit before they commence the operations.
Charles E. Whittaker: Well obviously, you couldn't mine under the refill because you would then be undoing what you were required in the first place to do, wouldn't you?
William C. Mattison: That's correct, but Mr. Justice Whittaker, there is nothing the record to show either the course of refill or assuming it to be substantial, there is nothing in the record to show that once refill was made the property then would not have a valuable use and a value in fact.
Charles E. Whittaker: (Inaudible) This then brings us to the question of whether this is really regulation or appropriation?
William C. Mattison: Well, we submit that as in the Mugler case spirituous liquors were held to be proscribable and in Powell where Olio was proscribed and in Piers, these cases we've cited in our brief where the storage of oil cans was proscribed and in Reinman where a livery stable was proscribed and in Hadacheck where mining -- where manufacture of bricks was proscribed that this is not constitutionally prohibitive in violation of the Fourth Amendment because there is a nuisance which this community has the power to regulate and this statute with its regulatory provisions as the trial court held and as the Court of Appeals held is directed to the regulation of the -- of the premises.
Potter Stewart: The time this pit staggered, it's the time of the digging started to -- Hempstead wasn't a -- wasn't very much American community. It was farm -- farm country, wasn't it? (Voice Overlap)
William C. Mattison: I think -- I think, excuse me. I think that's correct Mr. Justice. Judge Van Voorhis pointed out in this case as he did in the dissenting opinion in the Harbison case which is has been mentioned that the people here came to the community that the nuisance, although he wouldn't consider it's a nuisance, he said that I consider it the contrary, did not come to the community, but we do not see that that fact it could be assumed would constitute a lack of due process in the enforcement and enactment on this regulation -- of this regulatory ordinance which permits these -- permits these defendants to operate and on this record in which there appears absolutely no confiscation in the proof. There are two other questions.
Hugo L. Black: It would be (Inaudible), would it not if you called confiscation, depriving a man and the right to use his property for the purpose for which he wants to use it, which is to dig underneath the water.
William C. Mattison: Mr. Justice Black, if you use confiscation in that sense, it is confiscation because he can no longer dig. I do not question that. I'm using it in a appropriate sense in which the word --
Hugo L. Black: Although, it's taking away that right.
William C. Mattison: It's taking away the right because there is no question about it.
Hugo L. Black: If it was a right.
William C. Mattison: If it was a right. There is no question about it that under 4 (h) that there cannot be any further wet mining. There are two questions which remain no longer.
Earl Warren: We'll recess now.