William H. Rehnquist: We'll hear next in argument No. 89-1647, Carnival Cruise Lines, Inc., v. Eulala Shute. Mr. Willard?
Richard K. Willard: Mr. Chief Justice, and may it please the Court: The first question in this case is whether a State long arm statute constitutionally can reach a nonresident defendant in a case involving an out-of-state accident based on the defendant's advertising and promotional activities within the State. Now this is not a general jurisdiction case. Both courts below found that Carnival had not engaged in the kind of continuous and systematic contacts with the State of Washington that would support an assertion of general jurisdiction, and the plaintiff has not chosen to raise that issue before this Court.
Antonin Scalia: Mr. Willard, you say this question you're about to discuss is the first question in the case. Is it necessarily the first? Would we ever have to resolve this if we resolve the other one preliminarily?
Richard K. Willard: Each question, Justice Scalia, is independent and the Court could certainly resolve the case in our favor by deciding the second issue, the second question presented--
Antonin Scalia: And this one's a constitutional question, isn't it?
Richard K. Willard: --That is correct.
Antonin Scalia: And the other one is not.
Richard K. Willard: And the other one is not a constitutional question.
Antonin Scalia: We'd normally do the other one first then, wouldn't we?
Richard K. Willard: The Court has certainly indicated that that is appropriate. I would propose, if the Court pleases, to go ahead with the first question presented, although I understand that they're both independent issues.
Antonin Scalia: Please do so.
Richard K. Willard: The court of appeals, although it rejected generalist jurisdiction, found specific jurisdiction, because it said there was a sufficient nexus in this case between the Carnival's advertising activities in the State of Washington and the resulting... and the ultimate accident. They applied a test of but for causation. The court said that but for Carnival's advertising and promotional activities, Mrs. Shute would not have gone on this cruise and but for going on the cruise, of course, she would not have been injured. We submit that this connection is too tenuous to support the assertion of jurisdiction. And we recognize the State of Washington has an interest in providing a forum for its residents who may want to pursue claims for injuries they have suffered while traveling out of State. But this Court has never held that that kind of interest is sufficient to support an assertion of jurisdiction over a nonresident defendant. No matter how strong the State's interest in providing a convenient forum for its plaintiffs to pursue claims, those claims still must arise out of or relate to contacts with the forum State by the defendant in order to support an assertion of long arm jurisdiction. This Court has been mindful of the territorial limits on State power in connection with the assertion of personal jurisdiction, and those territorial contacts here are pretty close to their nadir. Here we have a nonresident corporation that does not have continuous and systematic contacts in a case involving acts of negligence which occurred out-of-state and which caused injury out-of-state. Thus, this case is readily distinguishable for situations where a defendant, for example, may send a libellous publications into a State or may send a defective product into a State where it causes injury. In this case, all of the acts on which liability is based and all of the injuries that support the claim for damages occurred out-of-state. The sole contact of the defendant with the State involved the advertising and promotional activities and the relationship between these activities and the allegations of negligence and failing to maintain a safe passageway through the galley are so slight as to create really a virtual fiction. This case is many ways like the case of Kulko against Superior Court. In that case, as the Court recalled, you rejected an assertion of jurisdiction in a case where, admittedly, the marriage of the parties had originated in California during a brief visit, but thereafter they moved to New York. Later, the wife moved back to California and the Court held that California could not assert long arm jurisdiction over the husband, who had remained in New York. Now it could be said that the marriage in that case was a but for cause of the subsequent lawsuit to establish a divorce decree, since but for a marriage you do not have a divorce. But the Court did not devote much attention and found it unnecessary even to seriously consider the thought that the prior marriage in California, even though that sort of a but for cause could form the basis for the establishment of long arm jurisdiction over the husband in a lawsuit involving, among other things, child support and establishment of the marriage decree. So, for those reasons, we would submit that the contacts here were too tenuous and unrelated to the cause of action to support an assertion of personal jurisdiction.
Anthony M. Kennedy: The complaint alleges negligence, does it not? I'm not sure that that's necessary for the cause of action, but the complaint alleged negligence. If the plaintiff here were... had shown that she relied on the advertising to find the safe and reliable ship line, could you say that there's some connection between the negligence cause of action and the advertising that she saw? I recognize that those aren't shown in the case, but just to test whether or not it's arising out of or related to.
Richard K. Willard: Well, certainly, Justice Kennedy, if she were to sue on the basis of fraudulent or false advertising, that would be like the Keeton case in which the contact with the forum gave rise to the cause of action, because the advertising itself would cause the injury. In your hypothetical, though, the advertising would not be a necessary part of the cause of action. She might allege that the advertising promised a safe ship. But of course she could sue for negligence whether the advertising promised a safe ship or not.
Anthony M. Kennedy: Well, but the context... do the context have to be necessary to the cause of action under your test? It has to be related to I thought our cases say.
Richard K. Willard: In our view it has to have a substantive relationship. That is, it should relate to the substance of the cause of action and not just a sort of a narrative relationship in which it's something that is part of the story that's told. And so, although she could have drafted her complaint in a way that might have indicated that the advertising somehow contained a promise of a safe ship, unless she were actually suing for a breach of warranty or something like that, it would be necessary to a cause of action for negligence.
Antonin Scalia: Mr. Willard, what if you... I understood your brief to suggest that the outcome here would be different if the cause of action had been for breach of contract. Suppose they'd simply claimed that there was a warranty of safety implicit in the undertaking so that instead of suing in tort, they are suing in assumpsit.
Richard K. Willard: Well, that would be certainly a stronger case for the assertion of specific jurisdiction where the act took place in the forum. And in our view, however, this is not an issue that could be resolved simply by clever pleading. In other words, simply putting a paragraph in the complaint that talked about the advertising as somehow containing an implied representation would not be enough unless it were actually a lawsuit based on that theory. In our view, there's no basis for asserting that kind of theory in this case.
John Paul Stevens: May I ask this? This accident took place in international waters, as I understand it. So is it correct that under your view of the proper causation, the only places in the United States where the defendant could be use would be where general jurisdiction would be available?
Richard K. Willard: That would be our general view, although it's certainly possible that there would be a situation where some act of negligence in another case would have taken place... correct.
John Paul Stevens: No, I'm talking about this case, where the act of negligence allegedly was she slipped in what she... visiting part of the ship, as I remember.
Richard K. Willard: That's correct, Justice Stevens.
John Paul Stevens: So that even if the ship had docked in Seattle but still not often enough to support general jurisdiction, but she had gotten on board the ship and sailed, and so that still would not justify it then?
Richard K. Willard: That would be our position here, because there's no allegation of an act of negligence on the land portion of the journey.
John Paul Stevens: Right.
Richard K. Willard: The allegation is that water was spilled on the galley during the cruise, and so all of the acts occurred outside of any State.
William H. Rehnquist: Well, didn't the cruise ship operate out of Los Angeles though? I mean, might there not have been sufficient jurisdiction in the superior court of Los Angeles County or the central district of California?
Richard K. Willard: Our view is, Mr. Chief Justice, there would not be, although there would certainly be a stronger tie there. But in our view where the... all of the acts of negligence occur out of State and all of the injury occurs out of State, that the mere fact that the cruise began and ended in the State would not be enough.
Byron R. White: Well, where could the plaintiff sue?
Richard K. Willard: Well, it could sue--
Byron R. White: Anywhere? Nowhere?
Richard K. Willard: --The plaintiff could sue anywhere where she could obtain general jurisdiction over the--
Byron R. White: Well, where is that, for example?
Richard K. Willard: --In this case, it's Florida which is where Carnival has its principal place of business and also where, in the forum selection clause in the ticket, it is implicitly consented to jurisdiction.
Byron R. White: For the purposes of our analysis and yours on this part of the case, would it make any difference if she could not have sued in Florida, if she would have had to go to a foreign country? Or is the analysis the same?
Richard K. Willard: In our view the analysis is the same. The... Congress has never provided a special rule of service for foreign defendants in this kind of a case, and so as long as Rule 4(e) provides that the State long arm statute is the basis for service of process, this Court's decision in the Omni case indicates that that would be the form of analysis. We certainly don't suggest Congress is constitutionally required to adopt that, and it could if it chose adopt a special rule for service of foreign defendants. But it has not done so in this situation. I had indicated that there is one place for sure where Carnival could be sued, and that is Florida. And that's because it has its principal place of business there, and as the second issue in the case indicates, there is a provision in the passenger ticket requiring litigation to take place in the State of Florida. Now the Ninth Circuit and the respondents in this case make two arguments as to why this clause should be not enforced. The first argument is a very broad one, which apparently is that ticket conditions of this nature are never enforceable, because passenger tickets are preprinted. They're contracts of adhesion. They're offered on a take-it-or-leave-it basis. And then their second argument is that even if this kind of a clause is sometimes enforceable, here in this particular case it's so unreasonable and burdensome that it should not be enforced.
Antonin Scalia: Mr. Willard, before you get into those two arguments, is it clear to you and should it be clear to us that this is a question of purely Federal law and it doesn't matter how the State of Washington would have treated this forum selection clause?
Richard K. Willard: Yes, Your Honor. This Court has regarded this issue as one of Federal admiralty law, and I see no--
Antonin Scalia: When did we do that?
Richard K. Willard: --Well, The Majestic, which of course, predated Erie was a decision on a passenger ticket condition.
Antonin Scalia: What about post-Erie? Do you know a case where the point was argued where we've decided that?
Richard K. Willard: I don't believe this... well, under Bremen, the Court viewed that--
Antonin Scalia: It wasn't argued.
Richard K. Willard: --If it wasn't argued in the Bremen, then this Court hasn't decided it. But I don't see any reason why it should be a doubtful proposition when you're dealing with a question within the Court's admiralty and maritime jurisdiction. Almost every other aspect of admiralty law is viewed as Federal law, and in fact the Court did indicate in the Bremen the importance of having uniform Federal law for admiralty and that certainly was one of the reasons the Constitution made that an item of Federal jurisdiction.
Sandra Day O'Connor: Even if the agreement is entered into within a particular State where jurisdiction is asserted?
Richard K. Willard: Yes, Justice O'Connor, that's our position. Is it still a question of Federal Admiralty law, and I think... I'm not aware of any line of cases that would indicate that that would be questionable.
Antonin Scalia: So you'd say Washington has to follow us. You'd still achieve uniformity, but instead of our following the State of Washington, the State of Washington, had this suit been brought in State courts, would have to follow our view of the effectiveness of the forum selection clause.
Richard K. Willard: Well, that raises a slightly different question as to whether a suit brought under the Savings to Suitors Clause in State court, whether the state court would be required to apply Federal admiralty law. I think there are a couple of decisions from the early part of the 20th century that indicate that that would be the case. And that's generally thought to be true, but again that's not specifically prevented... presented here. I think the better view would be that the State court would be required to follow Federal law on the enforceability of a forum selection clause in that kind of a suit.
Sandra Day O'Connor: Is that somewhat at odds with the Erie principle?
Richard K. Willard: In our view it's not at all at odds with the Erie principle, because this falls in the area of admiralty and maritime law where there is a very strong need which the framers of the Constitution recognized to have a uniform body of law. It certainly would be strange to think that the States would be empowered to make up their own rules of admiralty law and very burdensome to the orderly conduct of maritime business to have different States having different laws that would apply here. The... with regard to the broader issue of whether, as a matter of Federal Admiralty law, this kind of provision should ever be enforced, there's a longstanding body of case law that holds that ticket conditions are valid if they're reasonably communicated. And in this case the respondents do not challenge that these conditions were reasonably communicated within the meaning of that body of law. Their argument is, instead, that they just should never be enforced. In this regard, there is a statute, the Limited Liability Act, that regulates but does not outlaw ticket provisions in steamship passenger tickets. The law says the ticket condition of this nature cannot--
William H. Rehnquist: This is a Federal statute?
Richard K. Willard: --Yes, Mr. Chief Justice. The Limited Liability Acts, sections 183(b) and (c) which is cited in the briefs, provides that ticket conditions cannot disclaim liability for negligence. They can't require arbitration. They can't require less than 6 months' notice, and they can't require a lawsuit to be filed in less than a year. But they do not say you can't have a forum selection clause in a ticket. In our view, when Congress chose in this particular area to regulate ticket conditions to a certain extent, but chose not to prohibit forum selection clauses, this Court should not go further and on its own outlaw forum selection clauses, or for that matter, particularly on a theory that ticket conditions are products of contracts of adhesion. To the fallback argument in this case that petitioners make is that even if forum selection clauses are generally all right, that Florida is an unreasonable and burdensome forum in this case. But their argument here really confuses what would be a proper forum, non conveniens-type analysis with the question of whether or not the contractual forum choice should be enforced. The question here is not is Florida the most reasonable forum, but is the... Florida such an unreasonable forum that the contractual choice should be disregarded. In our view, however, even if the question were what is the most reasonable forum, the answer would be Florida. In fact, if Carnival were to designate in all of its tickets that all lawsuits had to be litigated in the State of Washington, that would be far more unreasonable than what we have here. Florida is where Carnival has its principal place of business. Its... most of its ships arrive and depart at one time or another from Florida. The headquarters, the books, records, and other information is available.
Antonin Scalia: Well, it will be the most reasonable if you have to pick one place, but it could have designated on all its... you know on its tickets that all suits brought by citizens of Washington shall be brought in Washington. You're insisting on one forum for everything. Maybe that's unreasonable.
Richard K. Willard: Well, one reason why it is reasonable to have a single forum is that the time a cruise occurs it's difficult to know where all of the witnesses in evidence will be months or years later when a lawsuit occurs. For example, the respondents seems to suggest that if the designated forum had been the place where the ship departed and returned, that would have been more reasonable, by analogy to the Hodes case which designated Naples.
John Paul Stevens: But doesn't that indicate Miami as unreasonable? To assume all suits should be brought in Miami.
Richard K. Willard: Well, the reason--
John Paul Stevens: You suggest that you don't know where the witnesses will be.
Richard K. Willard: --That's correct and so Miami is chosen, because that's where the company is headquartered. And so that is more likely to be a forum where at least some documents, some witnesses will be available. The company's records are there. Its ships frequently land and take off there, so employees of the shipping line may be thought to be more readily available there than they would be somewhere else. But back to the question, if I may, of whether it's reasonable to select one forum rather than saying every passenger can bring a lawsuit in their own home city. Many situations can arise in which an incident involves passengers from all over the country. Carnival carries hundreds of thousands of passengers from all of the states and many foreign countries. And if each of them could go home and file a lawsuit about an injury, there would be a litigation on these conditions all over the country, maybe arising out of the same incident. We cite the California... the Williams litigation in California in our briefs. And that case, which Carnival has sought a stay from this Court and announced an intention to file a petition for certiorari, involves this same forum selection issue. There, over 200 passengers from a number of different States filed a lawsuit claiming to have been injured in an incident of rough passage on the same cruise from Los Angeles to Puerto Vallarto. Now, if all of them could go home and litigate the same issue in different State courts or Federal courts, that would be very inefficient and burdensome. And so by designating a signal forum in the passenger ticket, Carnival's designation serves the interest of judicial efficiency as well as reducing its costs by providing that all the litigation should take place in one place.
John Paul Stevens: Don't the Federal rules have some kind of provision for consolidating all these cases when you have a large accident like this?
Richard K. Willard: That's certainly true if they file in Federal court, Justice Stevens, but under the Savings to Suitors Clause, they can file in State court. And--
John Paul Stevens: Can't you remove?
Richard K. Willard: --If there is not complete diversity, you cannot remove. But it was--
John Paul Stevens: But you're talking about individual suits by 200 different plaintiffs, and each one of those, I suppose, there would be complete diversity?
Richard K. Willard: --Well, it depends on who else they name. In the California case I was just mentioning that we cited in our briefs, they named some in-state defendants as well--
John Paul Stevens: I see.
Richard K. Willard: --in order... and some John Doe defendants under State practice in order to defeat diversity and prevent removal. So there would be some cases where that could happen. So, in summary, our view is that it makes sense in a situation where a cruise line operates with passengers from all different States as well as different countries to designate in the ticket a single forum. And certainly if a single forum had to be designated, Florida is the most reasonable forum that could have been selected in this case. And therefore, it's our position that the clause should be enforced. Unless the Court has further questions, I would reserve the balance of my time for rebuttal.
William H. Rehnquist: Thank you, Mr. Willard. Mr. Wall, we'll hear now from you.
Gregory J. Wall: Mr. Chief Justice, and may it please the Court: This is a case brought in admiralty in the western district of Washington dealing with an injury to a Washington resident which occurred in international waters. The question for this Court is whether that case can be brought where the plaintiff purchased her tickets, where she resides, where the witnesses mainly reside, or will she have to travel 3,000 miles to probably the farthest point in the continental United States from where she resides to try this case and to do so in a State where there are no witnesses which are relevant to this lawsuit and which, in effect, have very little to do with this lawsuit. The petitioner has taken the position, both in oral argument and in its brief, that due process only allows it to be sued where its corporate headquarters are currently located which is in Miami, Florida. We take the position that due process, based upon their contacts with the State of Washington, allow them to be sued in Washington. And the forum selection clause I will address a little bit later, but we take the position that it essentially shouldn't be enforced in this case, because it is unreasonable under the facts of this case. Counsel's correct that the contacts with the State of Washington are primarily promotional and advertising in nature. However, many of these... some of these promotions took place in the State of Washington... these seminars for travel agents. He left, however, the very important ones which are the sales of these tickets in the State of Washington which occur there, and in addition, the purchasing of travel agents' services, essentially, by paying a commission. These are significant contacts, and they are systematic and they are continuous. While the Ninth Circuit did not feel they were sufficient for the exertion of general jurisdiction, we've never taken that position. But in any case, we feel that a specific jurisdiction is warranted here. This case has already been to the Ninth Circuit and the Ninth Circuit, because of a question... because State laws play such a large part in jurisdictional questions involving the Long Arm Act, certified a question to the Washington Supreme Court which specifically asked them if the long arm statute would encompass this case if the conduct of the petitioner was sufficient in order to invoke long arm jurisdiction. Specifically, does this accident arise out of their contacts with the State? In a unanimous decision, the Washington Supreme Court decided that as a matter of State law--
Byron R. White: Do you agree that the accident must be said to have arisen out of the acts of the defendant in the State?
Gregory J. Wall: --Yes, Your Honor. If we are relying on specific jurisdiction, it has to arise out of--
Byron R. White: Well, that's all you're relying on, isn't it?
Gregory J. Wall: --That's the Ninth Circuit decision. Yes, Your Honor, and that is what we're relying on in this case. And it does... according... that is a matter of State law, since it--
Anthony M. Kennedy: Now, did you argue general jurisdiction at any point?
Gregory J. Wall: --We did in the Ninth Circuit, Your Honor, and the Ninth Circuit disagreed with us. They felt that there were enough contacts here for the exercise of specific jurisdiction but that we did not meet the threshold necessary for general jurisdiction. The--
Byron R. White: Mr.-- --The act out of which this accident you say arose was the sale of tickets?
Gregory J. Wall: --It arose out of the minimum contacts of the defendants with the State of Washington, one of which was the sale of tickets.
Byron R. White: The solicitation in Washington and the sale of the ticket to this person?
Gregory J. Wall: That's correct, Your Honor.
Antonin Scalia: Mr. Wall, I thought as far... maybe I got my facts mixed up... but I thought as far as Carnival Cruise Lines is concerned, the sale took place in Florida. But your client bought it... bought the ticket from a travel agent, but the travel... but the sale by Carnival Lines was made in Florida. Am I wrong about that or is that right?
Gregory J. Wall: I suppose it's a matter of one's view, Justice Scalia. One is... my client paid her money to a travel agent and received her money... received her ticket from the same travel agent, who was an agent paid a commission by Carnival. Carnival's assertion is that, because the ticket is printed in Miami and that it is... the money is eventually received in Miami, that the sale took place there. Our contention is is that's a rather illogical way of looking at it, because cars are made in Detroit and the money finally... usually winds up there, too, but that doesn't mean the sale occurs there. It occurs where you pay your money and where you receive the product. And in this case my client paid her money in Washington and received the ticket in Washington from the agent of the defendants. And so we contend that the sale and numerous sales... other sales take place in Washington. And I should point out the travel agent in this case was specifically trained by Carnival at seminars in the State.
Antonin Scalia: Well, it's clear that her purchase occurred in Washington. It may not be clear that Carnival's sale occurred in Washington. I mean, I don't know what the arrangements were. Maybe the travel agent stood liable for the money. I mean, the travel agent may buy and resell these things. I don't know what the arrangement is.
Gregory J. Wall: According to her affidavit, which is in the respondents' appendix, she forwards the money to Carnival. They forward the ticket to her. She gives it to my client. At least from the consumer standpoint, the sale took place in the State of Washington. And I think the fact that they are receiving money from citizens of the State and that they are providing a product or a service, depending on how it's related, certainly shows a business or a commercial presence in the State of Washington in addition to advertising. And we've never taken the position that the advertising alone is sufficient.
Byron R. White: Well, how did they advertise? Just through magazines, national magazines, or did they have specific advertisements on radio, or television, or in newspapers or--
Gregory J. Wall: The petitioner advertises both in the national media, Your Honor, and also in the local media.
Byron R. White: --In newspapers?
Gregory J. Wall: In newspapers, magazines, as well as providing brochures, and in fact, then... the record indicates that they regularly run large ads in the largest newspapers in the State of Washington.
Byron R. White: Travel agents have their brochures?
Gregory J. Wall: That's correct. And the travel agent in this case attended seminars in the State where she was provided with brochures and essentially trained by Carnival to sell their product, and those were conducted inside our State of Washington.
Byron R. White: Do you know exactly how this particular purchase took place? Did your client want to go on a trip and come to the travel agent and say, what have... have you got any suggestions?
Gregory J. Wall: That is precisely how it occurred and the record would... has her affidavit.
Harry A. Blackmun: And has the travel agent suggested this?
Gregory J. Wall: That's... the affidavit of Mrs. Shute is part of the record and she says she went to the travel agent. She had never been on a cruise before. She discussed with the agent--
Byron R. White: So she didn't see any of these advertisements in this... she just... the whole thing happened with the travel agent?
Gregory J. Wall: --The travel agent is certainly the largest part of it. And I don't know whether she saw the ads in the newspapers or not, quite frankly.
William H. Rehnquist: Does her affidavit indicate that she did?
Gregory J. Wall: No, Your Honor, it does not. It indicates that her principal source of information was the agent itself. In any case, much is made by petitioner on the question of whether we should... "but for" should be adopted as the Ninth Circuit and two other circuits have adopted it, the Fifth and the Sixth, I believe. But it's our position in this case that that question, whether this arises out of the activity of Carnival in Washington State, is a question of State law based upon Civil Rule 4(e). And the only question really before this Court is whether that interpretation of Washington State law violates due process. This Court's earlier decisions have shown that... particularly the Burger King v. Rudzewicz case... have said that once a substantial connection with the State is established, once we show that they have substantial minimum contacts, and we establish that this arises out of the accident, then it becomes a substantial... the burden is upon the petitioner, the person resisting jurisdiction to come up with the evidence to show that there... this is not... this is a substantial burden or unreasonable burden upon them in the area of jurisdiction.
Byron R. White: Burger King was a contract case, wasn't it?
Gregory J. Wall: It was a contract case, Your Honor, in which the... in fact it was a contract case in which a choice of law section was imposed. However, the Keeton case is also one in which substantial contracts, once established, puts the burden upon the person who's contesting jurisdiction in order to show that it is unreasonable as applied to them.
Sandra Day O'Connor: Well, if the forum selection clause is enforceable, it doesn't matter whether there was special jurisdiction.
Gregory J. Wall: If the forum selection clause is enforceable, Your Honor, you're correct. We're going to Florida. And so it really doesn't matter if Washington has jurisdiction or not. I plan to address that as the second portion of my argument, but I can address it now if the Court desires. But with the Court's indulgence, I will discuss the last part of my jurisdictional argument. The Burger King case talks about the proximal relation between the action itself and the contacts with the State. Proximal generally means but for, at least the jury instruction we give people in Washington does. And we've taken the position that commercial reality in light of modern commercial practices have to be considered when you look at in personam jurisdiction. This is not a case in 1940 or 1949 when International Shoe was decided. This is a case now. And with the modern state of telecommunications and computers and communications is not necessary for Carnival to have an office in our State, to have an exclusive agent in our State, or to physically even be in our State in order to do a substantial amount of business. Consumers who deal with people who are doing a substantial amount of business in the State expect that they should be able to use the court system with these particular businesses. Businesses which are doing a substantial amount of business in the State should reasonably expect that they will be hauled into court if there is something arising out of their activities. That's our position in this case in a nut shell is that people... if Carnival comes to Washington to do business, sells its product... and it is really a product... and pays commissions to travel agents and induces people there to take voyages on their vessels, then it should also be willing to stay in Washington and to let the Washington courts operate in particularly this case of Federal--
Antonin Scalia: But that's general jurisdiction... I mean it sounds like general jurisdiction you're talking about. You say induces people in general, therefore they ought to be liable. You didn't say induce this person, because we really don't know whether this person was induced by the advertising.
Gregory J. Wall: --Well, we know she was induced by a travel agent who provided with the advertisements, Your Honor. And so I think their efforts obviously are related to this. This is... Shute didn't get the idea to go on their... this particular cruise line by herself. She was shown that by a travel agent who was trained and had emotional materials available from Carnival Cruise Lines.
Byron R. White: So you say at least it says specific jurisdiction?
Gregory J. Wall: It is at least specific jurisdiction, because it arises out of their contacts with the State. Now the argument is made that the "but for" analysis that has been applied by the Ninth Circuit and by the State of Washington, essentially is open ended. And we would say that it is not open ended, because in most of the examples given, particularly in petitioner's brief, they leave out the first step of the "but for" test, which is there must be substantial business contacts with the State. In this case there are substantial business contacts with the State.
John Paul Stevens: Why do you... why do you say there must be substantial business contact? The Washington statute doesn't say that, as I read it. It says there must be some act or some transaction in the forum State and then they say they... actually they say that in the second part, either arise from or be connected with the action.
Gregory J. Wall: Correct.
John Paul Stevens: But where do you get the requirement of a substantial business in the State?
Gregory J. Wall: Because the Court... this Court's decisions in the area of due process have said that you must have some substantial business connection. The Burger King case in particular uses that language. It says there must be a substantial relationship between the defendant and the State, even for specific jurisdiction. The Washington statute does say the transaction of business is one of the enumerated--
John Paul Stevens: Yes.
Gregory J. Wall: --things that operate the long arm statute, but then it also says it must arise out of the transaction of business.
Antonin Scalia: What if this company had never sent any other advertising into the State... in fact didn't even send in this advertising. But this travel agent happened to be in Florida and picked up this brochure from Carnival Cruise Lines, takes it back to the State. However, shows that brochure in the State of Washington to this plaintiff. You think that would not be enough then? Because that's certainly not a substantial business contact.
Gregory J. Wall: No, and I would agree that it is not enough. I think in that case that's a random and a fortuitous sort of connection with the State, much as if a relative of Mrs. Shute had mailed her a brochure from Florida. In that case, there would not be jurisdiction. It would be unreasonable to ask a corporation which is not doing business in the State to be hauled into court there. And in this case... if that hypothetical were the case, or if... in fact if all they had done was advertising on a national media, we would take the... we would not be taking the position that there was--
John Paul Stevens: Well, I wonder if you mean that. Supposing that the travel agent is a full-time employee, for the moment, that came to Washington to deliver the ticket or something, and while delivering it, the person picked up a ride and they got in an automobile accident together to the negligence of the agent. Couldn't you sue the parent? Could you sue the corporation there?
Gregory J. Wall: --We would sue the corporation if she were in the course of her employment.
John Paul Stevens: Yes, I'm assuming she is.
Gregory J. Wall: But probably not under this particular statute. It would be because the accident occurred in the State of Washington, which is another portion of the long arm statute.
John Paul Stevens: I see. But suppose... all right. But I was thinking... well, say they drove across into Oregon. He picked... I don't know. That's too hypothetical.
Gregory J. Wall: Yes, I understand the Court's position. If it was a transitory-type of presence. For instance, if the president or the resident agent of Carnival Cruise Lines happened to be at Sea Tack Airport and I happen to be there with a summons in my hand, in that case, yes, I think there would be jurisdiction based upon the court's decisions in that area. But in this case, I think the key factor is is that they're actually doing business in our State and there is a large scale... fairly large scale commercial presence. The last factor I'd like to talk about... the substantive relevance is a term that's used often in there in their particular argument. It's a term essentially that has no place in the cases of this Court as far as I can tell. Rather than giving a certain amount of judicial economy, I think... and our position is is that in effect it gives the defendants another tool and another fact-specific type of thing to argue with the courts about. And if it's adopted, it essentially is going to limit long arm jurisdiction in cases like this to contract cases, and I think that's not the intention of the long arm statute or of the Court's prior decisions.
John Paul Stevens: Mr. Wall, can I review my ignorance in a question to you? I know it's fairly common in State court decisions, but have we ever had any opinions in which we discussed the two categories, specific versus general jurisdiction?
Gregory J. Wall: Helicopteros discusses it.
John Paul Stevens: Helicopteros does it.
Gregory J. Wall: Particularly, Justice Brennan's dissent discusses it, and it is discussed to some extent in the Burger King case, too, I believe, Your Honor.
John Paul Stevens: It seems to me that you're kind of asking for sort of a middle type... and I'm not saying it's an impermissible argument, but it's not the classic specific jurisdiction case, and it's not the classic general jurisdiction case either.
Gregory J. Wall: We've... in our brief we've talked about a sliding scale--
John Paul Stevens: Right.
Gregory J. Wall: --whereas if they have a lot of activity but it's not quite enough for general jurisdiction, then perhaps it should be a somewhat more liberal arising out of--
John Paul Stevens: Does this sliding scale notion originate in that same law review note that the Washington Supreme Court relied on or is that--
Gregory J. Wall: --I don't know exactly what they relied upon, Your Honor, but I suspect that it may come from that, yes.
John Paul Stevens: --They say the whole thing started in some Georgetown student's law review note as I remember it.
Gregory J. Wall: It could be, but I think they looked at it in this case in the sense that if you're really there doing business, there's no requirement in any case I know of that says that the type of contact and the type of injury have to be identical, which is what the petitioner is arguing here. And we think that's unreasonable to a large degree.
Thurgood Marshall: Is there anything in the record about the contract between the agent and the... and the line?
Gregory J. Wall: Only that it is acknowledged by the petitioner that they pay a 10 percent commission on all sales.
Thurgood Marshall: But there's no responsibility or anything on the record?
Gregory J. Wall: There's nothing to that extent, Justice Marshall, other than the commission and the fact that they are not the exclusive agent. There are other agents in Washington also. The... if I can I would like to move on to the forum selection clause, with the Court's indulgence. I should point out that there are several ways that we feel this clause can be invalidated in this case. It's not our position that--
Sandra Day O'Connor: Well, what law governs do you think?
Gregory J. Wall: --Justice O'Connor, that is a question which occurred to me when it was asked by I believe Justice Stevens here or Justice Scalia. The... ordinarily passage contracts are matters of admiralty law. However, under the Erie Rule, procedural matters are generally matters of whatever the local law is. Now, in this case we're in the United States district court and I think it's going to be Federal admiralty law regardless. If this case were brought in State court--
Sandra Day O'Connor: Is that what was applied, do you think, by the Ninth Circuit?
Gregory J. Wall: --Yes, Your Honor, I do. I believe they have applied Federal Admiralty law.
Sandra Day O'Connor: I didn't get that impression at all from the opinion.
Gregory J. Wall: As I say I didn't really address this in the brief because I didn't realize it was that much of a question, but I think they did apply Federal maritime law, since I don't recall them citing any particular Washington State cases of California State cases. There is not a great deal of law on this issue. And I should point out that the Ninth Circuit's decision was not that these clauses are per se unreasonable because they are not bargained for. They are... this particular clause is not bargained for, and in fact the petitioners admit that and say that they can't really bargain with everybody, which is probably true. However, what they said was it's not bargained for and it's unreasonable. And what we're saying here is that if this clause is to be enforced and is to be essentially imposed on consumers... it's not an agreement that you agree to, and I don't think any passenger ticket either on a ship or an airplane is one where you sit down and read it. People don't expect to get in lawsuit when they go on pleasure cruises... at least my client didn't. And... but it must at least be a reasonable clause.
William H. Rehnquist: What's your authority for that proposition?
Gregory J. Wall: Your Honor, basically the Bremen case. The Bremen case says they are... these clauses are prima facie, reasonable and enforceable unless there is evidence of overwhelming [inaudible].
William H. Rehnquist: Well, now the Bremen didn't put it that way. The Bremen in a footnote said there's no indication here, isn't that right? They didn't say unless.
Gregory J. Wall: The Court could be correct on that and I'm not sure. But they... at least the implication of the case is that they did not deal... this clause... the Bremen clause is valid because the parties had approximately equal bargaining power and there was no evidence of overwhelming bargaining power or fraud or--
William H. Rehnquist: So you would draw a negative implication from the language of the Bremen?
Gregory J. Wall: --That's correct, Your Honor. And I... excuse me.
Antonin Scalia: Well, why do you say there's an overwhelming bargaining... this is a big corporation and just one individual, but you know when I go into a showroom and decide whether or not I'm going to buy a car from General Motors, General Motors and I are even-Steven as far as bargaining power is concerned, it seems to me. You know, unless there's some reason like I need a car or I will lose my inheritance or something like that. I need a car within 10 seconds. You're not talking about food. You're talking about a pleasure cruise. You're client didn't have to go on a... on this boat. She didn't have to go on any boat. She didn't have to go on a vacation. She could have stayed home. What was the disparity in bargaining power?
Gregory J. Wall: Disparity in bargaining power... there are different aspects to every transaction, Your Honor, and one of them... the hypothetical you just cited... certainly you have a great deal of bargaining power by not buying the car... in this case my client did want to go on a cruise... or about the price of the car or the terms. However, I suspect that if you tried to bargain about the terms of the warranty, the terms of the contract, you would have a very difficult time.
Antonin Scalia: Oh, well, that doesn't go to bargaining power. I mean, it seems to me that goes to whether it is a take-it-or-leave-it type contract, but she's still entirely free to leave it.
Gregory J. Wall: She is entitled--
Antonin Scalia: It's a different point from the one that Bremen was making.
Gregory J. Wall: --Your Honor, I would disagree with that, because in this case if the plaintiff wants to buy this product, she has to go to a cruise line. And, as you know, there's an amicus brief filed in this case from the International Cruise Line Committee, which is... represents I believe 10 different cruise lines, in which they essentially say we all have these same clauses. So, there's no bargaining power on this at all. If you want to go on a cruise, it's take it or leave it. Now, admittedly, she doesn't have to go on a cruise and it's not a necessity of life, but neither are most things and neither are most contracts we enter into. But they still should be fair.
Antonin Scalia: Isn't that what the Bremen meant by disparity of bargaining power?
Gregory J. Wall: I think that the Bremen means is that if you have two commercial entities who can bargain over the contract terms and those contract terms are accepted, fair or unfair, you know, advantageous or disadvantageous, you're stuck with it. And in the Bremen case, maybe it's tough on Zapata or Bremen, the owners of the drilling rig to go to Lloyd's and arbitrate it, but they agree to it. In this case, I think what the Ninth Circuit meant when they said it was not bargained for and was unreasonable was that because it's not bargained for, we can look at it and say, is this reasonable? This is imposed on my clients. They didn't get the chance to look at this thing over. You don't get to look at this ticket until it shows up, until you pay your money. And we cited the Carnival Cruise Lines v. Superior Court case, which is the Williams case counsel referred to, in which he says... in which it's made pretty clear. A lot of times you don't get this ticket till you actually get on the ship. So, if you're going to impose this on consumers, it ought to at least be fair. It ought to at least be reasonable. And I think it's a legitimate function of the court to look at these contract revisions in a case like this and for a district court judge to say, I'm not going to enforce this because it's very unreasonable. Now, there's also nothing here to stop the petitioners from bringing a motion to transfer this case to Miami if they think that they can win it. In this case--
Antonin Scalia: Of course the Federal statute doesn't say that. I mean, Congress has addressed what, you know, what's likely to be unreasonable in steamship tickets, and it hasn't said that you can't include this kind of a clause.
Gregory J. Wall: --It doesn't specifically mention that. It further doesn't specifically mention any kind of clause at all. It just says you can't use these ticket provisions to lessen, weaken, or avoid the right of a person to get into court. And there are a couple of ways you could read that. We think the intent of Congress is to protect the passenger from unreasonable clauses. And if this case... if we have to go some place where there are no witnesses and which is 3,000 miles away from where my client and the witnesses reside, it very easily does lessen, weaken, or avoid our attempts.
William H. Rehnquist: Where are these... the witnesses in your particular case?
Gregory J. Wall: Most of the fact witnesses and the... all the medical witnesses with the exception of an unknown Mexican doctor are located in the State of Washington. Well, I should say also the ship's doctor... as a--
William H. Rehnquist: They were fellow cruise passengers?
Gregory J. Wall: --That's correct. Some of the cruise passengers that we know of are in California. At the time this lawsuit commenced, the ship was in California. We don't know exactly when, and... or if it's still there or not. I think it may have been moved, but at least when we started this lawsuit, they were in California. The... I would suggest that if the ticket in this case had said, you may sue us in Miami or at the point of embarkation, it would be a reasonable ticket. But it doesn't say that. It says no matter where you're hurt, you have to go to Miami to sue us. In this case, if we were... assume Mrs. Shute was from Los Angeles, had bought her ticket in Los Angeles, had boarded the vessel on Long Beach Harbor, had walked out the gangplank and had slipped in the aisle going to her stateroom, before the vessel ever left the dock, and was injured, she would then... according to the petitioner's position you have to go to Miami to sue her, to bring her action under this. And we think that is fatally unreasonable and although I didn't address the statutes specifically, Justice Scalia brought it up and it's my feeling that the statute is intended to prevent this sort of thing, although the Ninth Circuit never got that far. But I think this Court could very easily rule on that basis.
Anthony M. Kennedy: Well, do we look at the forum selection clause from its overall fairness standpoint, just kind of a facial attack or do we look at it with reference to the reasonableness of its application to the plaintiff in this case?
Gregory J. Wall: Our position is that it should be applied to this case and to persons in a similar class.
Anthony M. Kennedy: Well, then the California example has nothing to do with it.
Gregory J. Wall: It does, because if you're in California they get the same clause and they have to go to Miami.
Anthony M. Kennedy: Well, but the analysis might be different.
Gregory J. Wall: I agree, Your Honor, and I don't mean to restrict it to just this case, but I think... the point I was trying to make is that we don't feel that a forum selection clause was outlawed by Congress per se or that they're invalid per se, because I think they do have a reasonable commercial purpose. I think the example counsel cited is a little weak, because there are multidistrict litigation rules in the Civil Rules for Federal Procedure... or Federal Rules for Civil Procedure which allow the handling of plane crashes and multi-district kind of things.
William H. Rehnquist: Well, what if your clients had filed in the Superior Court of King County?
Gregory J. Wall: In that case, I think State law because it probably is a procedural matter, would control whether or not this is to be enforced.
William H. Rehnquist: No, I mean there certainly couldn't be any transfer to Florida.
Gregory J. Wall: Unless it was removed under... because it's an admiralty action and I will confess, Mr. Chief Justice, that not all admiralty actions are removable and I don't know if this one is or not. I know Jones Act actions by crew members are not removable unless there's diversity. But it poses a problem with the forum selection clause and one reason why it's somewhat unworkable and unfair to my clients. This case is one in which the Court has the opportunity to essentially leave the in personam jurisdiction alone and let specific jurisdiction operate according to, I think, it's probably the minimum requirements which is the but for standard adopted by the Ninth Circuit and by the Washington supreme court. Or it can add an additional requirement that the claim itself be identical to the claim... to the contacts with the State. And I think that is an additional requirement, the substantive relevance. And if it is adopted, it will essentially delay these cases one more time and give us much more to litigate about. The Court also in our view should, at least in this case, agree with the Ninth Circuit and refuse to enforce the forum selection clause. The forum selection clause, as the William case illustrates, is an important point across the country, because there are many litigants that want to sue either where they sailed on the ship or in their home States. And many times the only thing preventing them is the forum selection clause. It is unreasonable in this case, and it is depriving consumers of something that they ought to have, a right to sue for injuries when they are injured on board the claimant's... the petitioner's vessels. If that is removed, then they have to go to Miami, the practical effect is that it will lessen, weaken, or avoid their right to recover from--
Antonin Scalia: You're not saying it's something that they ought to have. You would have no objection to this, I gather, if your client had been protected... presented with a ticket that said check here if you're willing to agree that you can sue only in Florida in which case your ticket will be $10 cheaper, because it's going to cost us a lot more to defend suits all around the country. That would have been okay, right?
Gregory J. Wall: --In a word, Your Honor, no.
Antonin Scalia: That wouldn't have been okay either?
Gregory J. Wall: No, because the question here is not whether it has been reasonably communicated to them or whether they knew about it. The question is... because... or if... well, let me rephrase that.
Antonin Scalia: xxx.
Gregory J. Wall: If my client had bargained for this and said, yes, I agree to that specifically, then I would agree with Justice Scalia. However, if it's going to be imposed upon them and every other cruise line does the same thing, then, no, I think we're back to determining whether it is reasonable because it is imposed upon them. I see my time has expired.
William H. Rehnquist: Thank you, Mr. Wall. Mr. Willard, do you have rebuttal? You have 9 minutes remaining.
Richard K. Willard: Mr. Chief Justice, and my it please the Court: The one question I wanted to address was the one of the choice of law. The Ninth Circuit did hold, and it's in their opinion in page 21a of the appendix to the petition, that Federal law governs the validity of the forum selection clause, citing Manetti-Farrow and a Ninth Circuit decision. And then the court went on to say, thus, the starting point for analysis is the Supreme Court's decision in the Bremen.
Sandra Day O'Connor: And the court... the Ninth Circuit also said alternatively that there was an independent justification for refusal to enforce the clause... I'm looking at page 24a... because of the lack of inconvenience and lack of relationship between the chosen forum and the transaction.
Richard K. Willard: That is correct, Justice O'Connor. But it cited the Bremen, so it seemed to indicate that that was... it was deciding that as a matter of Federal admiralty law rather than looking to State law as the source of that doctrine. Similarly, we did cite in our opening brief at page 21 in footnote 18 two decisions of this Court to the effect that the steamship passenger ticket contract would be governed by Federal admiralty law, one actually as recently as 1956. So our position is that this is a question of Federal law. Now the question of whether Federal law would control if this case were in State court or perhaps if it had been brought on the law side of a Federal court is one to which we think this Court's decisions in the past have indicated Federal law would control, and we think that's the better view. But obviously it's not presented in this case. It was brought as an admiralty case in Federal court. I would be happy to respond to any additional question the Court has.
William H. Rehnquist: Thank you, Mr. Willard. The case is submitted.
Speaker: The honorable court is now adjurned until tomorrow at ten o'clock.


Warren E. Burger: Number 75, the application of Martin Robert Stolar. Mr. Boudin, you may proceed whenever you're ready.
Leonard B. Boudin: Mr. Chief Justice and may I please the Court, this is a petition seeking review of an order of the Ohio Supreme Court denying the petitioner the right to take the Bar examination there which is a condition to admission to the Bar. The petitioner was denied that right because of his refusal to answer three questions, a refusal based upon both First Amendment and Fifth Amendment grounds. Those questions appear at the bottom of page five and the top of page six of the petitioner's brief. Question 12 (g), “States whether you have been or presently are a member of any organization which advocates the overthrow of the Government of the United States by force. If your answer to any section of the above question is yes, set forth the facts in detail.” Question 13, these are on two questionnaires says, “List the names and addresses of all club, societies or organizations of which you are have been a member.” And question seven at the top of page six says, “List the names and addresses of all club, societies or organizations of which you are or have been a member since registering as a law student.” I should say that the petitioner had been admitted to the New York Bar were then in Ohio working for a branch of the office in the economic opportunity and had applied for admission to the Ohio Bar.
Potter Stewart: Or what he applied for was a permission to take the examination --
Leonard B. Boudin: Precisely, Your Honor.
Potter Stewart: Quite right. If he had been a member of the Ohio Bar for a certain number of years he could have been admitted on motion I think, is that still true?
Leonard B. Boudin: Now, when he appeared before -- when he got this question he declined to answer those questions on the application form on the ground of what he said was the Fifth Amendment and all of us have assumed that that meant for that stage privilege against self incrimination. Subsequently, in meetings with the character committee members, he indicated that he was also relying upon the First Amendment and that he regarded the questions that were put as not pertinent to it's qualifications as a member of the Bar -- to be a member of the Bar. and when the character committee or the members of the committee eventually wrote their reports, they prayed very strongly the impression that this young man had made on them in their interrogation and one of them said that if the rest if the committee would not the mind the fact he hasn't answered these questions I would have recommend it as admission. But the committee decided not to recommend his admission -- that is his admission to the examination. And at that stage while the matter was appearing, was before the Ohio Supreme Court he retained counsel. And counsel wrote to the Ohio Supreme Court, pointing out that the petitioner had raised First and Fifth Amendment grounds and that a recent decision of Judge Friendly in what we call the LSCRRC case, the Law Students Civil Rights Council case now pending in this Court at 696 and the recent decision by a statutory court headed by Judge Friendly questions of this very type were found by the statutory court to be improper and to impinge upon First Amendment rights and I will develop shortly the respects in which Judge Friendly found questions to this kind to be improper. And the counsel suggested the desirability of appearing before the Ohio Supreme Court arguing the matter instead of the Supreme Court upheld the committee and to then order appearing at page 56A of the appendix denying the application of Mr. Stolar to appear before the Bar -- to take the examinations. Now, we -- as I indicated before I am reasonably satisfied to the extent that the council could ever be could prevail in this Court on the grounds indicated by Judge Friendly and in the LSCRRC case and I will turn to those when I address myself specifically to the questions put by Ohio to Mr. Stolar. We think, however, that there are more important problems, more fundamental problems relating to the entire question of political qualifications if I may use that term for the moment, to admission to the Bar. And it's for that reason our first point, in our submission is that political belief and political association and political advocacy of any kind are not proper conditions or grounds for this qualification to admission to the practice of law. As I say I realize the burden that I'm faced in presenting that proposition in the light of several cases in the Court for the assumptions underlining those cases but I want to address myself to that before I begin my argument on the second and third point which are that the test and the questions and the procedures followed by Ohio in this particular case violates the rule of precision which has been set down by this Court in a large series of cases in the last five or 10 years where the First Amendment rights may be impinged upon. And my third argument is going to be very brief and that will relate to the right to assert the privilege against self-incrimination and answer the questions put by a character committee. All three --
Warren E. Burger: Do you link those two propositions together in any way?
Leonard B. Boudin: I think these are completely independent, Your Honor. The last two.
Warren E. Burger: The last two.
Leonard B. Boudin: The last two are completely independent.
Warren E. Burger: They're not suggesting the assertion of the privilege against the questions directed to inquiry about the Communist Party.
Leonard B. Boudin: I am suggesting that too and I will come to that at the last page as I am suggesting the right to assert privilege there. I want to suggest very briefly because we have elaborated on our brief and that we'll require a -- we hope a reconsideration by the Court of some of the assumptions in Konigsberg and Anastaplo despite the fact that they effectuate distinguished by the element of the question of Communist Party membership which one reason or another has been regarded as sui generis in this Court. I want to turn to the first proposition which is that it seems to us that those -- that a political test and I may suggest even out conduct which is unlawful, although, obviously we don't have to go that far here, is not related at the proper functions of the Bar. Now, yesterday it as suggested by some members of the Court that the fact that some political activities might be protected against criminal prosecutions. Mr. Justice Stewart, I think made a point deciding when Brandenburg against Ohio was mentioned does not necessarily mean that the persons engaging in those activities protected against criminal prosecutions are proper to admissions to the Bar and I wish to suggest that a reading of Keyishian and of Elfbrandt and Robel and Schneider against Smith which we have cited and quoted from in our brief suggest the contrary that those cases emphasized a point and in dealing with what we think with all due respect at least a sensitive and more sensitive occupations and membership of the Bar, namely work in a defense plant, work as a teacher with the young, work on in a merchant marine and in all of those cases the Court has said that these are constitutionally protected activities and the constitutionally protected activities cannot be a ground for disqualification from employment. Now, our submission here and I don't think it has been fully argued obviously on this argument I can't argue with fully either is that the profession of the law is a profession where these standards are less applicable for the following reasons. First, it is a lawyer is of course not an employee of the State and whatever power the State has over its employees should not be applied to the lawyer and we think to the aspirant lawyer. The second is it is difficult to conceive precisely what function it is as a lawyer that would be adversely affected by a political viewpoint or to go with political activity. It seems to us that there is a difference between the questions of a good private character, to go back to ex parte Garland phrase which we quoted in our brief and the question of a bad public character -- a question of a public character which is involved in the questions of conception of whether or not the State should be overthrown by force and violence to take the extreme situation. In other words, the history of life in this country and in the world generally had shown that the most honorable persons have had conceptions and that sometimes attempted to carry up those conceptions into action. In the political field, without in the slightest way reflecting upon their good character except when they have failed, I suppose, and without if there being any suggestion of the question of moral servitude and I think back specifically to the case of ex parte Garland where is through the Court based its decision on under the rubrics or on the principles of Bill of Attainder and of ex post facto law and yet in that case and in Cummings against Ohio we were dealing with the most serious of political crime. We were dealing with matters described I think by Mr. Justice Miller's dissent as reasonable activities by Mr. Garland who, after engaging in the fight against the union on behalf of them sedulously, was admitted Bar here or retained his membership for the Bar, I should say and eventually became the Attorney General of the United States. Now, In short --
Byron R. White: At all permissible for a committee to ask an applicant to -- if he advocates assassination to right social wrongs?
Leonard B. Boudin: Well, I think -- I think, when we get to an extreme question of assassination Your Honor it's always one of those extreme problems that are very hard to answer.
Byron R. White: Well then, make it more general, make it more general, do you advocate the general use of violence, violent means to achieve social and economic ends.
Leonard B. Boudin: I think the answer is, my answer would be consistent with point of view, I suggest that the committee could not ask that kind of question.
Byron R. White: That is a wholly relevant to the --
Leonard B. Boudin: I think it is relevant, irrelevant to the practice of law.
Byron R. White: You mean if the advocacy of violence, I suppose, you would say then that it would be wrong to ask the person, “Are you now engage in violent activities to rights or for wrongs?”
Leonard B. Boudin: I would consider that too, but of course we're really dealing here at the moment with three kinds of things, belief, association and advocacy --
Byron R. White: How about my last question?
Leonard B. Boudin: I would even feel that as far as conduct is concerned that would be an improper question.
Byron R. White: And certainly -- and certainly a fortiori just advocacy of violence.
Leonard B. Boudin: That is quite right Your Honor. Now I will say that there is a -- in other words, I regard those as matters which may reflect upon the which -- matters which should be handled where we reach the point of danger to the community. Handling the ordinary matters of due process by criminal trial I don't regard those as bearing upon the functioning of the lawyer as a lawyer in the process. I think this is a very different situation for the policeman who was given a gun. This is a question for the yesterday I think also and whom one would expect because he is given a gun to have a responsibility with respect to the use of the gun. But I think that there must be a distinction between the function of a lawyer and his private capacity and the lawyer and his function as a lawyer.
Byron R. White: (Inaudible).
Leonard B. Boudin: Well, I think --
Byron R. White: (Inaudible)
Leonard B. Boudin: Well, the difficulty is that I am going to answer your questions directly, I hope, but the difficulty is Mr. Justice that we really are not dealing in reality in this field if we analyze the last 20 years with the questions of anarchism or the question of actual violence, we are really dealing --
Byron R. White: Well, I am just trying to (Inaudible)
Leonard B. Boudin: Well, I would say that even question would respect violence. If one is talking about advocacy of violence, I'm not talking about conduct yet. Conduct I think if it reaches a point where it's punishable, where it's outside the First Amendment protection and most conduct is of course, then it would be punishable.
Byron R. White: (Inaudible)
Leonard B. Boudin: Well, that would come in to the question of what a lawyer would advice a client. I think we're moving into a different area. I was dealing with a lawyer as a citizen and as I was about to say -- it is very high as I say to hit the extreme situation. I think we have to recognize that what we are dealing with here, we're dealing with this whole question of membership in organizations having political philosophies because that's what these questions are dealing with. We really aren't dealing with the extreme situation of conduct.
Byron R. White: (Inaudible)
Leonard B. Boudin: Well, I think -- I think it's a closer question when we get to the overlapping and to the conduct but I really think that all of these questions Your Honor, if we're talking within the framework of the reality, are questions that are concerned with membership with organizations which have particular political points of view. We are really never coming down to the question -- nobody ever asked, you are or did you engage in violence, the kind of question put by Your Honor. But we're always dealing with is, “Are you a member of an organization which has for its purpose, which has the literature behind it advocating the overthrow of the Government by force and violence?” Because I think your question is a very difficult one when I get down to the question of the actual conduct.
Warren E. Burger: Did I get the impression Mr. Boudin that you thought some of these types of questions might be appropriate to ask a candidate for the police force but not appropriate for the lawyer?
Leonard B. Boudin: Yes, I do think so Your Honor because then I thought that he had a particular responsibility and a particular danger and that it was his job to enforce the law.
Warren E. Burger: Then you would -- it seems to follow the map that you place the policeman's responsibility on a higher or lower plane.
Leonard B. Boudin: No, just different that is that the policeman has to do the law enforcement and I consider the lawyer as a matter of fact very often a boardwalk between his client and the Government in reality. In reality, there's no point am I giving Your Honor the headspring of this thing. I think it's a difference of function, not one that is higher or lower but I would like because I recognize the difficulty of -- part of this argument, we move to the point suggested by Mr. Justice White pertaining to the particular questions here so as the question here I think clearly for under what this Court has called the rule of precision in the First Amendment cases and clearly are in conflict with the decision of the statutory court which while we have felt that it has not gone so far enough as witnessed by jurisdictional statement in the LSCRRC case we agree with the dissenting opinion of Judge Motley the dissenting occurring opinion are nevertheless one that would call the Court's attention to this particular case. The questions that we have in this case questions two and three those dealing with all organizations are questions which the Court has really held improper in Shelton against Tucker. It held that they go so far as to discourage all political associations. Political association that is completely legitimate. And Judge Friendly pointed out Your Honors will see in the appendix in this case Judge Friendly pointed out that the New York Court, I think Mr. Justice Harlan probably was aware of that same questions that was put earlier had withdrawn such question with respect to membership at all organizations and at withdrawing them because of what Judge Friendly said the awareness of the need to bring them in line with developing concepts of First Amendment rights and he referred specifically to Shelton against Tucker and Schneider against Smith. Now, question number one the question relating to membership in an organization advocating the overthrow of the Government has defects that I think were recognized in some of the questions here and that Judge Friendly pointed out, they omit the absence of knowledge concerning the purposes of the organization, they omit the absence of congruence that is membership at the same time that the organization had these purposes. In addition to the two points made by Judge Friendly, which resulted in New York changing its question to import, to include these two elements. We suggest that the elements involved in Brandenburg against Ohio was suggested by that namely a specific intent to advance the purposes of the organization with which one and which one is a member are elements that also should be called for in a question of this kind. And our concern of course is the fact --
Speaker: Am I not right in taking that Judge Friendly upheld the question and so far as the absence of any aspect of knowledge with respect to the Communist Party -- do you upheld that question?
Leonard B. Boudin: The question of the Communist Party was not involved in the New York questionnaire specifically. And as I say, this Court had made its decision which we would hope it would reconsider on Communist Party.
Speaker: -- sustains that kind of a question.
Leonard B. Boudin: It does now --
Speaker: The question there is whether with the passage of time and so forth the element you are arguing before this Court held unnecessarily there is something ought to be (Inaudible).
Leonard B. Boudin: Exactly, I am also suggesting one more thing Your Honor with respect to Communist Party questions which of course is not the question put here, it's a communist party question is a much more pointed question I'm suggesting that Your Honors' decision Mr. Justice Harlan in opinion and Barenblatt and the opinion in Gibson and perhaps the sound reasons because we are in the First Amendment area now, would indicate that perhaps even assuming that the Communist Party membership question can ever be put and this in the Court we're willing to reconsider whether it should be put. That kind of a question should not be put in the absence of a foundation, some reason to believe that there's of course can make that particularly inquiry of an individual. Of course, Your Honor stated that view in reference, in dealing with the question of a draft of that inquiry in Barenblatt in a different context. But we're suggesting that the deterrent affect upon association here is one which would require that if even that question could be put it should be put --
Speaker: You're taking out an awful great suite of constitutional baggage here that you don't need to prevail in this case.
Leonard B. Boudin: I must admit that I think that my case could won very easily on the basis of --
Speaker: Well, I thought you are arguing your lawsuit.
Leonard B. Boudin: Well, because I think that the public problem is quite important and I know that this Court could say not only with the case that I'm bringing here but with the general impact upon membership at the Bar. And my concern is that the large amount of activities which the Court knows young law students are engaging in today activities in the south, activities with the poor, activities with minority groups, a panoply of activities are going to be discouraged and undiscouraged if questions this kind are submitted to be put.
Byron R. White: You really think that?
Leonard B. Boudin: I really do think so, Your Honor. When I argued this matter before the statutory court these Judge Bonsal raised a question. He sounded skeptical also but I may say that if Your Honor will see the array of the opinion in LSCRRC. The Court eventually recognize that what I have said what the reality thought was we who stand here you who stand there are not as close to these young law students who are engaged in worked in vengeance and even I who have been involved with so many of these cases in the last decade are now regarded as old had as conservatives.
Warren E. Burger: Well, what is the work in the prominent program or the office of economic opportunity got to do with organizations advocating the overthrow of the Government by force and violence?
Leonard B. Boudin: Well I think one of the -- because Your Honor the distinction is the people who worked among the poor or who works among minority groups are also in fighting against authority I'm using the word fighting at a general sense. They are regarded as dissidents, they regarded as radicals and if I can suggest Your Honor well I have forgotten to mention here, Your Honor will notice in our briefs what happened when Mr. Stolar appeared before the committee and what the committee said to him. They're not after having gone through this and the applicant's waiting to answer these generalized question of the fact of nature, Your Honors will see on page six of my brief that the committee pressed him into specific questions and answers and that eventually he answered that he had -- and these are the words from the committee “that he is not now and has never been a member of the Communist Party or any socialist party or of the students for a democratic society and that he has signed the standards of the United States preinduction army oath with respect to a list of organizations on the Attorney General's list.” In other words, the people who are engaged in work generally and who are members of the student organization after another are met by this kind of specific inquiry under Ohio's program and what reason is there that they should be asked, that a student should be asked whether he is a member of any socialist party. All of these arises as I say in the context of Ohio's program and all of these is bound to discourage young men from joining organizations, from joining student groups and what we are doing ultimately is we are letting the decisions to be made in these things as they must be made I suppose by character committees who makes for into First Amendment protected activities here and who live in a milieu which is so different from the young men who are in the law schools today and I have talked that recently in the law schools I have been amazed in the different quality of the laws students that exist today than those who existed even 10 years ago. And these students should not be discouraged by questions that are of this kind and that are put by Ohio as to whether they are members of The Students for a Democratic Society assuming there is such a single organization today. They should not be discouraged by asking whether they are members of a Socialist Party. All of these arises and arises in the context, Your Honors will know, that nobody has made any determination such as the Court suggested in a different context that I think applicable here in Joint Anti-fascist against McGrath, a determination that an organization is an organization which one should not belong to. It gives a freewheeling suite to the committees to make this inquiry. Now, with respect to the Communist Party although I have suggested that ought to be, should be reconsidered by the Court, the Court has pointed out repeatedly legislative findings, legislative hearings, judicial hearings and so forth. But with respect to matters other than the Communist Party, then it certainly seems to me that somebody must have a hearing to determine whether an organization is on a particular, should be on a list. If list had to be permitted before we are to give committee the right to ask questions concerning that. And of course, when we ask questions concerning any organization you're even going beyond what the Court did at Schneider against Smith when they talked about 250 organizations and are referred to the concurring opinion in that case of Mr. Justice Fortes and Mr. Justice Stewart.
Warren E. Burger: Were these, just one question, Mr. Boudin, if I may. Were these questions formulated by the Supreme Court of Ohio or by the Ohio State Bar Association's Committee or by the Columbus Bar Association?
Leonard B. Boudin: I do not know, perhaps the Ohio can say. As far as we know that these are the forms used and I suspect --
Warren E. Burger: State wide?
Leonard B. Boudin: By the states, I suspect used by the character committees in many states in the last 15 to 20 years not before, this is something new.
Warren E. Burger: Mr. Macklin, you may proceed whenever you're ready.
Robert D. Macklin: Mr. Chief Justice and may it please the Court at the outset, it should be understood that the rules of the Supreme Court Of Ohio with respect to the Administration of Bar Admissions place no burden upon the applicants approved his good moral character. Procedures actually one of the investigation performed by the admission's committees of some 89 Bar associations throughout the State. There's a sort of a student profession under the Ohio Supreme Court and the procedures of the Bar Association Committees are provided by rule of the Supreme Court of Ohio. Committees are responsible for investigating the character, reputation, and the moral qualifications of the applicants and to report their findings and their recommendations to the Court which in the ultimate result determines whether the candidate shall be in the first instance, registered as a candidate for admission to the practice of the law or in the second instance, whether he should be permitted to take the Bar examination. One process proceeds to the other. Each step of the procedure requires on the part of the applicant the submission of the character questionnaire which is utilized from the Local Bar Committee in performing its investigation. In all the phase of the form the applicant is advised that the information may be used is a guide to further investigation.
Potter Stewart: There are two, one beginning on page 5A on the record in the appendix and the second one beginning on page 14A in the appendix.
Robert D. Macklin: That's correct Mr. Justice.
Potter Stewart: And now who formulated this questionnaire?
Robert D. Macklin: It's my understanding that this questionnaire was formulated by the Supreme Court of Ohio.
Potter Stewart: By Court, it's the Supreme Court?
Robert D. Macklin: Yes, Your Honor.
Potter Stewart: And for the use throughout the State and all 88 counties?
Robert D. Macklin: Yes Your Honor. The various Bar Associations from time to time make recommendations to the Supreme Court for changes in its rules affecting this, the admission procedure but to my knowledge there has been no change to the format of the questionnaires at least for the past five years.
Potter Stewart: So, it's not incumbent upon each one of the 88 or you said 89 committees to formulate its own questionnaire to do its job?
Robert D. Macklin: No Your Honor. It is incumbent upon the committees to further the information that they obtain from these questionnaires. As an applicant from other State, the petitioner was -- did not require registration as a law student but the petitioner submitted both forms simultaneously. When he sought permission to take the Bar examination and the reason for this of course is the second questionnaire is primarily designed merely to bring up to the basic information provided for in the first questionnaire. The petitioner refused to answer two questions on the first questionnaire, one dealing generally with membership in organizations and the other is to whether he was a member of an organization which advocates to the overthrow the Government of the United States by force. This refusal was based on this right as guaranteed by the Fifth Amendment of the United States Constitution. On the second questionnaire which--
Potter Stewart: I don't quite understand why you have to fill up the first questionnaire. Because the first questionnaire I think as you have told us was for law students and he and it's dated there December of 1968 and he even graduated from law school on June of 1968.
Robert D. Macklin: That's quite correct Mr. Justice Stewart.
Potter Stewart: So, why was this applicable to him at all?
Robert D. Macklin: This is applicable as a matter of practice on the part of the Ohio Supreme Court itself for obtaining the basic information. If you were to study the questionnaire design for admission at the Bar, you will find that it really merely supplements the basic information obtained in the first instance. And the Ohio Supreme Court treats both questionnaires as a complete application. On the second questionnaire, the petitioner refused for the same reason as on the first questionnaire to answer a question about the membership in club, societies or organizations since the period registered as a law student. After being duly warned, duly warned of the effect upon the investigation of a failure to answer these questions, the petitioner persisted in his refusal to answer and based upon this refusal, the Bar Admission Committee recommended to the Supreme Court of Ohio that the petitioner's application for admission to the Bar examination be denied. The Supreme Court of Ohio approved the recommendation of the Admissions Committee and denied the application of the petitioner to be admitted to the March 1969 Bar examination. Petitioner has not raised an issue any quarrel with the right of the Supreme Court of Ohio to determine the qualifications of those who they would admit to the Bar including the moral fitness of such persons or such person who is to be entrusted with the faith of clients. It follows, therefore, that the Supreme Court of Ohio does have a legitimate interest in investigating the moral character of its applicants. They consider it hand-in-hand a part or in parcel together with the technical qualifications for the admission to the Bar. And pursuant to this purpose, it must be appropriate to allow the Court to inquire into associations to the extent that the information acquired thereby maybe an aid of such legitimate purpose. The function of the higher questionnaire, both questionnaires for that matter, is to provide the basic information as a guide in conducting the investigation of applicants nothing more. There's no political test involved, there's no oath of loyalty involved, and there are no prescriptions in mere membership in any organization. Now, the first of the petitioner's argument in this aggregate effect is really a conjecture as to what the Supreme Court of Ohio might do with the kind of information it seeks on these questionnaires. Not what it has done but what it might do. We submit that it would be unfair to determine this case on the basis of the mere possibilities or potentialities of action by the Supreme Court of Ohio. Surely, one may not presume that the Supreme Court of Ohio is not acutely aware of the decisions of this Court which are so carefully circumscribed areas of improper infringement by the States upon the First and Fourteenth Amendment rights.
Speaker: How long do we say to the questions hereon that there are recommendations (Inaudible)?
Robert D. Macklin: We don't feel --
Speaker: Specifically, what do you do, what do you say, how does this case incorporate (ph)?
Robert D. Macklin: Well, Mr. Justice Harlan we look upon disclosure of these associations as simply an entree into the ability to discuss with all the members of these associations whether or not there are aspects of this person's character, his moral fitness which may or may not have a bearing upon his fitness for the Bar. It's strictly a matter of inquiry or investigation and nothing more. We have no history to my knowledge in the state whereby a mere association or mere membership within an association has resulted in an applicant being denied permission to take the Bar examination.
Byron R. White: Can you suggest that this question is primarily directed at enabling an inquiry about the man at the organizations or among the members of the organizations that he was a member?
Robert D. Macklin: Members of the organizations and the associates whom he may have worked within the organization.
Byron R. White: That maybe a fairly easy question for a man when he is 25 that's a -- when he gets to be 45 that gets to be a more difficult question to answer. Even if his memory hasn't failed by that time perhaps joined some but he can't remember them all. Isn't that pretty difficult burden to put --
Robert D. Macklin: Well, it may be but if there's no dissent intent to deceive upon his part by excluding some organization with purposes to mislead the Bar Associations and their examination, I can't think that an innocent exclusion would militate against his acceptance. I note that most -- I have been a member of this Admissions Committee, as a matter or fact I am a former chairman and I can recall that some applicants even included the Book of the Month Club which I didn't think was necessarily a bad association.
Warren E. Burger: But the question because of its breadth has a tendency to elicit that kind of an answer in the exercise of the carrier that would be duly this kind of an application.
Robert D. Macklin: It's quite likely. The Ohio we think that the application of the principle of the second Konigsberg case is uniquely appropriate here. The effect of acquisition was pointed out to the petitioner when the investigating committee warned him of the consequence of his refusal to answer. More importantly, the investigating committee has before it a similar questionnaire filled out by the petitioner in applying for admission to the practice of law in the State of New York just a month before he made application to the Ohio Bar. In that application, he answered the following question, “State whether you have been or are a member of any party or organization engaged in propagating or pledge to affect changes in the form of Government supported by the United States Constitution or in advancing the interest of a foreign country. If so, state the facts fully.”
Hugo L. Black: Where is that in the appendix?
Robert D. Macklin: I beg your pardon.
Hugo L. Black: Where is that in the opinion?
Robert D. Macklin: That is -- it's contained Your Honor in our brief in opposition to our petition for writ of certiorari that's contained on pages 17A and 18A in the appendix there too. The petitioner responded no to this question.
Thurgood Marshall: Are there general requirement that (Inaudible) the organizations that he ever belonged to?
Robert D. Macklin: I don't know that it does sir, but it touches on a great many others. I don't believe that New York has a type of question exactly like the one on Ohio with regard to the associations. We really felt in Ohio, that where the applicant or the petitioner had answered this similar question at least it has similar elements and to those which refused to answer in Ohio on the basis of his rights as guaranteed by the Fifth Amendment but he thereby created an area of at least let's say perplexity on the part of those who were charged with the investigation of this moral character. The question of course would be, “Had something occurred in the intervening (Inaudible) that would cause his answers to the Ohio questionnaire to be possibly incriminating?” It may well be reasonable to logical explanations but the refusal of the petitioner to answer left a complete void in this particular area of the investigation being performed by the Admissions Committee. The members of the Admissions Committee were literally unable to complete the full investigation and they could not logically make any recommendation to the Supreme Court of Ohio as to the moral qualifications of the applicant. We contend that there was no reasonable alternative to the action of the Supreme Court of Ohio in denying the petitioner's application. We submit that the circumstances of this case which offered inconsistent statements bring the fundamental issue squarely within the principles of the second Konigsberg case.
Hugo L. Black: Does the applicant have to swear to this taken oath?
Robert D. Macklin: Yes, Your Honor, he does.
Hugo L. Black: For which he could be punished for perjury?
Robert D. Macklin: Yes, Your Honor.
Hugo L. Black: It might be a little difficult, wouldn't it? To be able to swear where there's some organization believe in overthrowing the Government by force, I don't think there have been many of them. Would that be an issue to be tried in the perjury case under your questions?
Robert D. Macklin: I suppose --
Hugo L. Black: If he swears it means he does not belong to any organization that believe an overthrowing the Government or have that advocacy by force and violence and that would be an issue in a perjury case, wouldn't it?
Robert D. Macklin: Mr. Justice Black, I think it possibly would be but I conceive of it, it could possibly be.
Hugo L. Black: Well, it would be, wouldn't it? That's what he's swearing.
Robert D. Macklin: Yes, but I think in addition of this you would have to show that he had an intent to deceive or to answer incorrectly.
Hugo L. Black: But I'm not talking about the intention to deceive. I'm talking about whether he belonged to any organization that believes on the overthrowing the Government by force and violence. And he swears to that, one of the incidents would be, whether he belonged to an organization which did that and wouldn't that make that issue open when the case of trial by perjury.
Robert D. Macklin: Yes, I would agree with you sir. Well, the fact -- we felt in this particular case is even more appropriate to the principles of the Konigsberg and Anastaplo cases, we would urge that this be the controlling point from the standpoint of our State and we respectfully urged this Court to affirm the decision of the Supreme Court of Ohio.
Warren E. Burger: Thank you Mr. Macklin. I think you have about -- I think your time has expired, yes. Thank you, Mr. Boudin for your submission.
Leonard B. Boudin: Thank you.
Warren E. Burger: Thank you, Mr. Macklin, the case is submitted.