William H. Rehnquist: You may begin whenever you're ready, Mr. Volinsky.
Andru H. Volinsky: Thank you, Mr. Chief Justice, and may it please the Court: The Court's decision in this case, whether it be based on a legal error, a narrow constitutional holding, or a very broad constitutional holding, must be based on an understanding of the sequence of events of voir dire--
William H. Rehnquist: Let me ask you one question, Mr. Volinsky, just based on your first sentence, if I may.
Andru H. Volinsky: --Right out of the box.
William H. Rehnquist: You say the Court's holding could be based on a legal error, on a narrow constitutional ground, or on a broad constitutional ground. Is there some non-constitutional ground on which we could reverse the Supreme Court of Mississippi here?
Andru H. Volinsky: That's in essence what I meant with the legal error. That ground... if the Court will recall, the basis that the Mississippi Supreme Court had for finding this error harmless was that the Mississippi Supreme Court said the trial judge had erred in previous rulings. The Mississippi Supreme Court also went on to find that the trial judge had made his previous Witherspoon rulings based on the trial judge's belief that the jurors weren't being sincere with him when they said that they had scruples that would prevent their being seated in the case. In finding that the trial judge didn't believe them and then going on to say, well, they shouldn't have been excused, the Mississippi Supreme Court misunderstood Witt. I think to make sense Witt has to be read to mean that jurors should only be excused if they honestly maintain scruples that prevent or substantially impair them.
William H. Rehnquist: Well, then if that is your example of legal error, which I believe was one of the things, that itself would be a constitutional ground, wouldn't it?
Andru H. Volinsky: I don't want to argue with the Court about whether it should be legal or constitutional. I think what Mississippi did is misunderstand Witt in that one respect, and I think without going into a very broad analysis of Davis this Court can say: You misunderstood Witt; if the trial court did not believe those earlier jurors, he wasn't wrong, and therefore we don't even get to this offsetting penalties concept. This Court also must recognize, in reaching its conclusion, the clear distinction between the jury function of fact finding in the guilt-innocence phase and the discretionary function involved in determining whether a particular community, a particular community, believes that the appropriate sentence in a particular case is death. The voir dire in this case was an alternating type voir dire. It didn't alternate on each particular juror, but alternated on the panels. To start with, twelve jurors were seated, they were questioned by the prosecutor. He exercised some peremptory challenges, one juror was excused for cause. They were replaced. The prosecutor stayed on his feet, questioned again until he was satisfied with the twelve in the box. They were then passed over to the defense lawyer.
Harry A. Blackmun: Is that the standard Mississippi procedure?
Andru H. Volinsky: I believe it is, although my experience is--
Harry A. Blackmun: You're from New Hampshire.
Andru H. Volinsky: --I'm from New Hampshire, Your Honor. From my understanding, it is commonly followed. The defense would then question. Then any replacement jurors would be requestioned by the prosecutor. The important thing is that the jurors were questioned in each other's presence. The jurors in the box, as well as the jurors waiting to be seated in the audience, could hear the questions, the answers, the motions, the rulings, and the ramifications of the rulings. Each side in Mississippi had twelve peremptory challenges.
Harry A. Blackmun: Well, can't counsel move that the waiting members of the panel be taken out of the courtroom?
Andru H. Volinsky: I believe they can. I believe there's also a motion for sequestered individual voir dire, where each juror is brought in singly. But that is discretionary.
Harry A. Blackmun: No such motion was made here.
Andru H. Volinsky: I'm sorry?
Harry A. Blackmun: No such motion was made here.
Andru H. Volinsky: No, Your Honor. And certainly, when the problems developed the prosecutor didn't ask in the middle of the proceedings to change the procedure. There were ten motions made for cause by the prosecutor related to Witherspoon grounds. The first eight were denied. Each of those jurors were then struck by a peremptory challenge by the prosecutor. The ninth cause challenge based on Witherspoon grounds was granted. It was against a juror named Schleh. This is at pages 503 to 506 of the transcript. It happens at a time when the prosecutor still has peremptory challenges remaining. The tenth juror was Mrs. Bounds, who was excused over complaints by the defense counsel that she was qualified to sit. Mrs. Bounds' voir dire begins at 529 and 530 of the trial record, which is just a little bit before what you have in your joint appendix. It starts with the judge asking Mrs. Bounds two questions: "Do you know of any reason you couldn't be a fair and impartial juror, Mrs. Bounds? " "No, sir". "Do you think you meet all the tests to be a fair and impartial juror? " "I'll try". We then go on to the prosecutor's questioning. He asked her a few questions about pretrial publicity, and then he goes on--
Antonin Scalia: That's a little ambiguous, "I'll try".
Andru H. Volinsky: --Well--
Antonin Scalia: It's not quite a yes, is it?
Andru H. Volinsky: --It's not quite a yes, but I think you'll see later on that she's been listening to this judge say, would you automatically vote against the death penalty regardless of the evidence. Her response to that is: "I will listen". So I think in context, she's saying she'll do the best she can. Her answers--
Antonin Scalia: That may not be good enough.
Andru H. Volinsky: --Excuse me?
Antonin Scalia: That may not be good enough.
Andru H. Volinsky: Well, any ambiguity on whether she can do the job or not, whether she's qualified or not, is cleared up later in the record, and I don't think there's a problem with that. The prosecutor asks her: "Do you have any conscientious scruples against capital punishment when imposed by law? " Her response at the outset is: "I don't know". "Well, I don't know either. " says the prosecutor. He says he knows how he feels, and then he goes on and tells her he's trying to find twelve people without conscientious scruples to sit on the case. That may be a proper purpose for him. It wasn't a proper ground for excluding her. The trial judge then intercedes on the prosecutor's request. He asks four or five different times, would you automatically vote against the imposition of the death penalty without regard to any evidence that might be developed in the trial of the case? Mrs. Bounds at first says: "I would try to listen". And then later, when he says "No, answer it yes or no. " she says: "No, I would not automatically vote against. " In the course of this questioning, I think it's appropriate to note the court makes a statement in the nature of a factual finding about Mrs. Bounds' credibility. He says: 18 of the joint appendix. Later on, a couple pages later, he goes on and says: "Mrs. Bounds, you're honest and sincere. " So he repeats the same finding. After this series of questions, the prosecutor asks Mrs. Bounds: "What would you do in this case? " "Could you send this man here to the gas chamber? " And she says: "I don't think I could", which, if it ended there, would probably disqualify her. But it doesn't end there. There's a motion to strike for cause. The judge tells us what his assessment is of her ability to be seated at this point, and he tells us: "I don't know whether she could vote for it, I don't know whether she couldn't. " "She told me she could just a while ago. " That's at page 20 of the joint appendix. At this point the prosecutor has not carried his burden of proof as an adversary seeking excusal of a juror. The judge isn't convinced that she cannot properly sit. There's a brief exchange regarding the prosecutor's precarious position, some more questioning by the judge. Mrs. Bounds says: "I think I could vote for the death penalty. " The prosecutor then makes another motion. This time it's not a motion to strike, it's a motion to reverse some of those prior rulings that Your Honor had asked about. There's a give and take at the bench and the trial court says: "Go ask her if she could vote guilty or not guilty. " "If she gets to equivocating on that, guilty or not guilty, I'm going to let her off as a person who can't make up her mind. " Well, the prosecutor goes out and asks her: "Could you reach a verdict"? "Yes, I could". "If the verdict is guilty, could you vote for the death penalty? " "Yes".
Harry A. Blackmun: Well, Mr. Volinsky, I suppose the trial judge messed up the whole thing, didn't he? I guess we'll all agree to that.
Andru H. Volinsky: I certainly--
Harry A. Blackmun: What do you think he should have done at the time this long exchange, which we're all familiar with, I might say, with Mrs. Bounds was concluded? Should he have started all over again, dismissed the panel and started all over again?
Andru H. Volinsky: --That would have been a certain way out of this quagmire. I guess the Court's question presumes that this trial judge believed that he had erred five times previously.
Harry A. Blackmun: Say it again, that this trial judge believed what?
Andru H. Volinsky: That he had indeed erred previously with respect to the five early jurors. I'm not so sure that that's the case. If indeed he felt that way, he could have reversed his earlier rulings and given this defense lawyer a chance to rehabilitate the jurors, which because of the nature of the way this voir dire happened, the defense lawyer never asked the excused jurors any questions. But be that as it may, I think the easiest way out of this would have been to throw the whole panel out... they were all infected with the questioning and attempts to get off the jury... and start anew.
Harry A. Blackmun: Were you of counsel below?
Andru H. Volinsky: No, I was not. All nine members of the Mississippi Supreme Court found that it was error to excuse Mrs. Bounds for cause. To paraphrase Adams, it does not appear in the record that Mrs. Bounds was so irrevocably opposed to capital punishment as to frustrate the state's legitimate effort to administer the death penalty. She at the end very clearly said, I could reach a verdict and I could impose the death penalty. One other thing I would point out, we do not have in this case the ping-pong effect that Mr. Justice Powell described in Patton. That's where the prosecutor gets up and asks a bunch of leading questions of an unprepared lay juror and smacks her in one direction, and then the defense lawyer does the same thing and smacks her back, and then the judge has to decide which set of leading responses is true. Mr. Stegall, the defense lawyer at trial, never asked Mrs. Bounds any questions at all. So we have the prosecutor asking confusing and sometimes leading questions on the one hand, and then we have the trial judge asking open-ended questions that get responses that qualify her to sit. And at the very end, it's even the prosecutor who asks: "Can you reach a verdict"? "Yes". "Can you vote for the death penalty? " I think it's pretty clear that Mrs. Bounds was erroneously excused. Having found that, the majority of the Mississippi Supreme Court then went on to its rationale about why the error was harmless. The rationale used this offsetting penalties approach. That is, you erred against the state by denying their motions, therefore it's okay to err against the defense. Jurors are certainly not fungible commodities where this kind of tit for tat approach is appropriate. Each juror brings something with him or with her.
Antonin Scalia: Well, that isn't the theory. It isn't just a tit for tat. The theory was that if the prosecution had had another peremptory challenge, the prosecution would have exercised it as to this particular juror, and therefore the excusing of this juror is harmless.
Andru H. Volinsky: Number one, I'm not clear that the Mississippi Supreme Court quite spelled it out, but that was my impression, as is yours. But when I saw the Respondent's brief, what you're describing is basically an unused peremptory's rendering an error harmless.
Antonin Scalia: Right.
Andru H. Volinsky: The Respondent in this case in their brief at 25 seems to distinguish the instant matter from an unused peremptories issue by saying that they would have, if they could.
Harry A. Blackmun: Of course, how do we know that they would have?
Andru H. Volinsky: I think that's the problem with the unused peremptories argument. I think when you consider how voir dire is conducted, you have a trial lawyer who's focused on a juror, getting at questions and answers, trying to determine demeanor, trying to determine how this juror will fit in with those, as well as individually, trying to figure out what the other side's going to do with this juror, and then trying to calculate what's going to happen behind him. I think that, even not doubting a prosecutor's sincerity, the nature of the situation changes from moment to moment to moment. I think it is--
Antonin Scalia: You can't be 100 percent certain, but there can be no doctrine of harmless error, Mr. Volinsky, if you require 100 percent certainty. It's hard to imagine an error you can say was 100 percent certain to have been harmless.
Andru H. Volinsky: I agree.
Antonin Scalia: All you're saying here is that you can't say for sure that the prosecution would have challenged this juror had the prosecution had one more left, but gee, doesn't it seem very, very likely indeed. The prosecution is saying this juror is so bad that she should be excused automatically, and to think that if he had a peremptory left he wouldn't have used it, I find it difficult to believe that that could have happened on the facts of this case. Well, I find it difficult to believe otherwise. It seems to me that she was fairly well rehabilitated, and that there is an element of distinct speculation as to whether that peremptory, if it existed, would have been exercised.
Andru H. Volinsky: I think the nature of her responses changed dramatically from the very front to the very end.
Antonin Scalia: Why was the prosecutor asking to have some of his peremptories back, then, if he didn't intend to use them? Do you think if the judge had said, okay, you can have them back, the prosecution would say, thank you, Your Honor, I don't intend to use them, I want to use them on later witnesses... on later people? It's inconceivable, isn't it?
Andru H. Volinsky: Well, I'm not 100 percent sure that he would have used them there, and you've said that 100 percent sure--
Antonin Scalia: He would have had one mad trial judge on his hands if he didn't, wouldn't he?
Andru H. Volinsky: --You bet, you bet. The other issue, the other way to look at this--
John Paul Stevens: What are you assuming, that he gets one peremptory back or all five, when you're in this debate?
Andru H. Volinsky: --I don't know how we tell. The trial judge clearly excused these people or clearly refused to excuse these people. I don't know how we parse out whether one comes back or five come back. I think it's speculation on this record that the trial judge believes he committed an error. I don't think he quite believes that. So I can't tell.
Sandra Day O'Connor: Mr. Volinsky, if we had a case where all the other eleven jurors had been selected at the time a Mrs. Bounds was examined and the state still had ten peremptory challenges left and the trial judge is convinced from the testimony of the prosecutor that indeed the prosecutor would have used one of them on Mrs. Bounds, could we have a harmless error inquiry?
Andru H. Volinsky: I think in that circumstance, Your Honor, you have to look at Judge Goldberg's concurrence, where he talks about not only the impact of the erroneous ruling as to juror X, but the impact of the erroneous ruling as to the rest of the panel. I think that having a pocket full of peremptories, as opposed to a few--
Sandra Day O'Connor: Well, on the facts that I pose, in your view could we have a harmless error inquiry perhaps?
Andru H. Volinsky: --I think there's a problem with it. The problem is... and it happened here. This trial judge refused to excuse these jurors. Because of his ruling, the defense lawyer made no attempt to question the jurors, rehabilitate the jurors, or whatever. If we were in a situation, as Your Honor poses, where we're down to the last person and the response from the juror is, I could vote for a death penalty, what's the defense lawyer supposed to ask her to make her position any more clear? I think it presents problems in that procedural context.
John Paul Stevens: I must confess, I really don't understand this part of the argument, because no matter whether the trial judge was right or wrong, the state did elect to use its peremptories. If he did not believe the jurors and he thought they could have sat legitimately, the only way the prosecutor could get him off was by-using a peremptory. So on that hypothesis they had to use the peremptory, right? And on the other hand, if they were telling the truth they were qualified and the only way the prosecutor could get them off was to use a peremptory.
Andru H. Volinsky: Right.
John Paul Stevens: So I don't understand how there's even an arguable basis for saying the prosecutor wouldn't have used his peremptories. He had to, no matter what your theory is.
Andru H. Volinsky: I think he would have used them. I think--
John Paul Stevens: Well, he did use them and that's--
Andru H. Volinsky: --Yes, I agree, I agree. There is some discussion by the Respondent and the amici that this case is governed by Lockhart and that because of Lockhart jurors with scruples don't comprise a recognized group. Just very briefly, I think Lockhart makes it very clear that there is a special context for capital sentencing. The jury's function in capital sentencing is not the very strictly channeled fact finding of guilt or innocence. I think it's discretionary. It involves representation of that community's beliefs, perhaps moral outrage, perhaps mercy. It's based on the weighing of factors that an appellate court can't go back and say this weighing was appropriate. How can we compare age of a defendant versus the way the crime was committed? It simply isn't... it isn't something that can be replicated or even viewed critically by an appellate court. This court in the Bobby Caldwell case talked about the appellate court's inability to glean from the record the intangibles of a jury's decision to sentence to death or not to sentence to death. I think those comments are quite appropriate here in this case. The only other point I would touch on is, there is some argument by the amici and the Respondent that this Court has already used a harmless error standard in death penalty cases in the context of Zant versus Stephens. That case in part is completely distinguishable from this case; in part, it supports Petitioner's position. Very briefly, you have to look to the metaphor used by the Georgia Supreme Court, which involved the pyramid and the narrowing effect of the jury selection, of the jury selection of who is eligible and then who deserves the death penalty. The function of aggravating factors in Georgia was simply to see which defendants were death eligible. Therefore, the finding of one or ten aggravating factors was no different. Any one beyond the first was a redundancy. In a case like this, in this instance, where Mississippi requires a unanimous verdict, a decision to improperly excuse one juror cannot be considered a redundancy. She could have been the juror that saved Mr. Gray's life. A failure to reach a unanimous verdict results in a life sentence. The other point, just to go back to Mr. Justice Scalia's question about 100 percent versus very likely versus the harmless error, which is a reasonable possibility that it couldn't affect this verdict, I would submit that it's the prosecutor, the state, the Respondent, who must establish harmless error beyond a reasonable doubt in this kind of an error. We're not dealing with something like defective assistance of counsel, where the prosecutor can't control what happens. Clearly, this prosecutor did control what happened. He did not need to... he didn't have to stand on his motion.
Antonin Scalia: --What more could he have done?
Andru H. Volinsky: This is distinguishable from the Strickland scenario, where the prosecutor can't prevent the error because he doesn't control what the defense lawyer does. In this situation, the prosecutor formed the questions, he made the motions. He didn't have to continue to press the trial judge to excuse this juror. He could have said: Yes, she can vote for a guilty verdict; yes, she can vote for death' I withdraw my motion. It was within his power, is what I'm saying, as opposed to the ineffectiveness claim, where the defense properly bears the burden.
Antonin Scalia: Well, but it wasn't realistically... it wasn't realistically within his power to do anything otherwise unless, and not have this juror seated, unless he were given back one of the peremptories that had been taken away earlier.
Andru H. Volinsky: That presumes that he has a right not to have this juror seated.
Antonin Scalia: That's right.
Andru H. Volinsky: He didn't have that right under these circumstances. I didn't expect the Court not to have very many questions. I'd like to reserve the portion of the remaining time if the Court doesn't have further questions.
William H. Rehnquist: Thank you, Mr. Volinsky.
Andru H. Volinsky: Thank you.
William H. Rehnquist: We'll hear now from you, Mr. White.
Marvin L. White, Jr.: Mr. Chief Justice and may it please the Court: In this case the Mississippi Supreme Court held that the force and effect of the trial court's ruling in this case was to correct an error that he had committed in refusing to dismiss other jurors for cause after they had unequivocally stated that they could not vote to impose the death penalty in any circumstance. The court further held--
Harry A. Blackmun: Of course, the trial court never made a finding to that effect, did he?
Marvin L. White, Jr.: --I think the trial court said that, in the paragraph where the trial court is talking about that, he said: I have cheated the state out of this. And I think that is a finding. It says the court is of the opinion... and that's on page 26 of the joint appendix: "The court is of the opinion that it cheated the state by making him use... by making the district attorney use his peremptory challenges in at least five instances, and I'm going to allow them in this particular case. " So I think the trial court is clearly recognizing his error there, that he has made a mess, as he said himself, and created this situation that we have a juror who, he says in his findings of fact, also that she can't make up her mind. He has a totally indecisive juror.
Harry A. Blackmun: Then I'll ask you what I asked your opposing counsel: What should the trial judge have done in order to clean up this mess that he created?
Marvin L. White, Jr.: I think he probably should have used the word "peremptory" instead of "cause" there, and I think that's probably what he meant to say. But he used the term "cause" and, if you read prior to that, in a couple of paragraphs prior to that, he got the terms "peremptory" and "cause" confused there. And I think the judge fully meant to use the word "peremptory" instead of "cause". But we have this situation here where he used the word "cause" and things moved on.
Antonin Scalia: Well now, it's not just inadvertent, because he says later: "I'm not going to add any to his challenges. " I think you've got to admit he knew what he was doing, that he knew he was dismissing this juror for cause, rather than giving the prosecutor another peremptory.
Marvin L. White, Jr.: He says, I'm not going to give you five more.
Antonin Scalia: It would have been smarter, perhaps, to give the prosecutor another peremptory, but he didn't. He excused this juror for cause, and he knew what he was doing.
Marvin L. White, Jr.: And I think he was backing off and excusing her because she was indecisive in her answers and he was not satisfied that she was in fact rehabilitated and everything else, and was saying there that he was going to excuse for cause. The Mississippi Supreme Court, of course, looking at this situation, decided that this was a case in which they had to step in and define what the trial judge meant or decide what the trial judge meant. And we find there that they did. They said he properly did what he did, instead of dismissing this whole venire and starting over again at this point.
Harry A. Blackmun: Mr. White, let me ask you, too, about Mississippi procedures. Is this case typical of the jury selection procedure in Mississippi?
Marvin L. White, Jr.: Pretty much typical. What we do in Mississippi, we put twelve people in the box and then the voir dire starts. And the challenges are exercised, and the state has to present the defense with twelve jurors in the box that we accept, and then the defense can voir dire them and then remove those.
Harry A. Blackmun: Is that similar to Alabama and Louisiana, Tennessee?
Marvin L. White, Jr.: I'm not familiar with their practice--
Harry A. Blackmun: It seems very strange to me, an unusual kind of a way.
Marvin L. White, Jr.: --It's called the Stennis method of jury selection, and it's name after Senator Stennis. When he was circuit judge, it started then. And it has been approved in the federal courts in Gray v. Mississippi, the non sequestered voir dire. And there is no provision, and it has been consistently held that there is no entitlement to, a sequestered voir dire in this case. It's discretionary with the judge, of course. So in looking at this, there are five jurors in this case that do not equivocate in the least in their opposition to the death penalty. And the judge... something the defense counsel has skipped over here is when the judge talks about, and he says: "I'm in a precarious position by making the state use its challenges when we clearly have met the law in about six cases. " "Well, I think I had one or two that just used this to get off the jury, at least one person that I'm positive of. " That's on page 20 of the joint appendix. So the judge is not saying that all of these people were using this to just get off the jury. He said, I've got one or two, and one that I'm positive of. So it is not conclusive that he was removing these jurors just because he was thinking that they were just using it to get off the jury. What he was doing was trying to insulate this case from Witherspoon error. So, because it is clear that if you use a peremptory that there is no question there is no Witherspoon problem. And by forcing the state... when he uses the first one, when he requires the state to use the peremptory on the first challenge, to Mr. Ruiz: "We would like to use one of our challenges at this time. " "Well, I'm not going to excuse him for cause. " "You'll have to use one of your challenges. " In one of the others, he just... "I guess", the judge says, "you're going to use one of your peremptories. " He just tells the state when they move for cause. He says no, use a peremptory. So the state was forced to use peremptories in those five cases. There are three jurors there that they used peremptories on that are in the joint appendix, and of course those are clearly jurors that that was the proper use of a peremptory, for the use of a peremptory. So we have a trial record, of course, that is very confusing, and this confusion, we submit, is cleared up by the Mississippi Supreme Court in holding the trial court was correct in correcting the errors there from forcing them to use peremptory challenges.
John Paul Stevens: General White, I was just reading over again the colloquy. It's really puzzling. But when the judge says "Oh, I think there are one or two that just used this to get off of the jury, at least one person that I'm positive of. " Do you think that's the equivalent of a finding of fact, that there was one of these that was excused that the state had to use a peremptory on that was guilty of perjury?
Marvin L. White, Jr.: Well, I don't know. Maybe they did have some--
John Paul Stevens: See, it's conceivable that they might have been very happy to get off the jury because of this, and they may have perhaps just emphasized, given more emphatic answers or something. I don't know just how to interpret that statement.
Marvin L. White, Jr.: --And I don't either. I mean, I think that that is one of those situations where you have... and it happens in every jury... somebody comes in, they've got someone sick in the family, and they just don't want to serve. And the Mississippi Supreme Court addresses that in its opinion, saying that, you know, we are a busy society and people don't want to take the time out to do this, this duty of serving on a jury, and they think up every excuse in the world to get out. So this is a situation that we have to address, and we're going to look at here that this trial judge here was doing the best he could here to try to--
John Paul Stevens: Doesn't it have to be part of your case that he says at least as with respect to one, because he says at least one person that I'm positive of, that that's pretty much the equivalent of saying I think that prospective juror was lying?
Marvin L. White, Jr.: --I think he probably does. He has that feeling that he's lying, maybe not absolute proof for that juror. And there's no way, I guess, that you could ever prove that that juror was perjuring himself, but he has that gut feeling, and that's what he's saying there.
John Paul Stevens: Would that gut feeling be adequate to justify excusing him for cause without finding that he was not telling the truth?
Marvin L. White, Jr.: I think that would be adequate reason if someone... if the judge feels like he's lying in the voir dire. I think that would be adequate reason to remove him for cause.
Antonin Scalia: You wouldn't remove him; you'd leave him on. You'd leave him on and make the state exercise its... well, no. What would he do?
Marvin L. White, Jr.: I think the judge could remove him on his own motion. If someone is not going to be honest in his answers on voir dire, then how can the judge be confident that this person is going to render an honest verdict. If he gets mad for staying on there, he may take it out on either party.
Antonin Scalia: To remove him as a perjurer?
Marvin L. White, Jr.: Right, or for whatever cause. I'm going to excuse you for my own cause. I don't think, you know, if one side or the other didn't exercise a challenge there--
Antonin Scalia: But that's not what he did. He did just the opposite.
Marvin L. White, Jr.: --Yes.
Antonin Scalia: He left them on because they were lying.
Marvin L. White, Jr.: Yes.
Antonin Scalia: He said, these people who say that they can't vote against capital punishment, they're lying.
Marvin L. White, Jr.: Yes, I see. I was looking at the overall picture, not this particular case.
John Paul Stevens: Did the state, with respect... and we don't know which juror this is. But with respect to any of these, before using its peremptory did the state support a motion to excuse for cause on the ground that this juror is not believable, I think he's just trying to get out of jury duty?
Marvin L. White, Jr.: Well, are we talking about Juror Bounds now?
John Paul Stevens: No, no, no. The earlier ones, the earlier ones, when the state was--
Marvin L. White, Jr.: Not that I recall on the record, I don't think. I think the full voir dire--
John Paul Stevens: --So that the notion that the judge was too tough on the state and perhaps should have granted the motions for cause really arises during the colloquy about Mrs. Bounds for the first time?
Marvin L. White, Jr.: --Well, I think he took exception to that in the very... with the Juror Ruiz, and he says--
William H. Rehnquist: What page are you on, Mr. White?
Marvin L. White, Jr.: --It's on the first. Page 3 right now I'm looking at. I think that's not the place where he objects to the judge making him use a strike. 0.... "All right, we intend to use. " I don't find it right now, but in one of the cases where the judge required... on one of these jurors, the state did take exception and... oh, yes. I can't find it right now. In one of the jurors he did say that--
Sandra Day O'Connor: The top of page 4, possibly?
Marvin L. White, Jr.: --Yes. "And let the record show the state takes exception to the court's ruling that that, because we think. " --and the judge interrupts and says: "All right. " "This is a classic one for cause. " And so the state did preserve its objection to what the judge was doing in that case. So we have a situation here that is ripe, I think and we contend, for the application of a harmless error rule here, because as was stated in Rose v. Clark, per se errors are those errors that abort the basic trial process or deny it altogether. That was not done here. The basic trial process was not aborted here. Mr. Gray received a fair trial. He does not make the contention that the jury that convicted and sentenced him wasn't impartial. He's saying that because we excused this one juror that we have a technical Witherspoon, Witt, Adams violation, and therefore the case should be reversed on the basis of Davis versus Georgia. And we contend that this case is so factually different than Davis versus Georgia that the Court could leave undisturbed Davis versus Georgia if they chose.
Sandra Day O'Connor: Mr. White, if the state had no peremptory challenges left and there was no question that earlier jurors had been properly excused... assume that it's not the facts that you are alleging here... and the state had no peremptories left at the time that Mrs. Bounds or someone like her is erroneously excused for cause, would you still urge a harmless error inquiry?
Marvin L. White, Jr.: If there had been no request for an additional peremptory... I mean, that's within the discretion of the trial judge, there, too... I don't think we would be here, if we hadn't requested an extra peremptory, which he could have given to the other side.
Antonin Scalia: But if we were to agree with you, what is to protect us from an assertion every time that there is a Davis versus Georgia error on the part of the trial court?
Marvin L. White, Jr.: Davis versus Georgia--
Antonin Scalia: What is to protect us from the prosecution coming in and saying: Well, yes, this juror shouldn't have been discharged, but nonetheless, but nonetheless the trial court made these five errors earlier in not allowing peremptories, and therefore we want you to review the disallowance of all of the peremptories? Is that what we're letting ourselves in for by listening--
Marvin L. White, Jr.: --Well, as most harmless error cases must be, they must be looked at on a case by case basis. I mean, there's no broad firm and fast rule in a harmless error context. You've got to look at that error in that case. And I think that we have to--
Byron R. White: --Well, at least here you've got a finding by the State Supreme Court that there was an error in dismissing those earlier jurors.
Marvin L. White, Jr.: --That's true, we have. The State Supreme Court--
Byron R. White: And also, that a subsequent juror was entitled to sit, except for. But do you think that the Mississippi Supreme Court found harmless error?
Marvin L. White, Jr.: --Well, they did say in there that they could show no prejudice, the defendant could show no prejudice. They mentioned prejudice, and I don't really know that that really kicks in the whole harmless error thing, I mean, just by saying that there was no prejudice to Mr. Gray.
Byron R. White: Well, normally wouldn't we remand to a state court to find harmless error if it hadn't found it?
Marvin L. White, Jr.: That's what's been done, I think, in Rose v. Clark and Delaware versus Van Arsdale. They were sent back to for--
Thurgood Marshall: Mr. Attorney General, about how much time would it be if the judge at that point had said, okay, there's nothing else I can do, I'll throw the whole jury out? How many days would have been lost?
Marvin L. White, Jr.: --It would have probably in this particular case, since this is one of the populous counties and they do have a term of court starting every other month, it could have been probably within a month, because in a capital case a special venire is drawn and it takes a couple of weeks to compile and draw and serve a special venire.
Thurgood Marshall: It would take about a month?
Marvin L. White, Jr.: A month or two, if that's the situation there.
Harry A. Blackmun: Mr. White, let me follow up on Justice Scalia's question. Is it Mississippi law that the trial judge in his discretion may go beyond the statute and allow as many additional peremptories to the state as he sees fit?
Marvin L. White, Jr.: Well, I don't know that we've ever had a case--
Harry A. Blackmun: You have no cases on that?
Marvin L. White, Jr.: --on that. It has been done in cases, but never been raised as an issue. I mean, I've seen cases where it's happened, but it's never been an issue that the court has spoken to. So it's something that our court says the trial judge has very wide discretion in seating a jury, and it has said that--
Harry A. Blackmun: One last question. Where is Harrison County? Is that Jackson?
Marvin L. White, Jr.: --No, it is not. It is on the Mississippi Gulf Coast, Gulf Port, Biloxi, where the Kiesler Air Force Base is, I think. This is where the victim--
Harry A. Blackmun: Not a small rural county?
Marvin L. White, Jr.: --No, it is not. It's a very populous area.
Byron R. White: Did you say there are actual cases where the trial judge has given more peremptories?
Marvin L. White, Jr.: Yes, sir.
Byron R. White: To both sides or just to the prosecution?
Marvin L. White, Jr.: Well, it's usually been both, to both sides. You know, if you give to one you give to the other. Here this is not, of course, what the situation would have been. The state was saying, give us back one that you made us erroneously use, you erroneously made us use. So, but there are cases where extra peremptories have been given. In fact, in one capital case we had that was on appeal, I believe to Mississippi, the trial court I believe gave an extra six to both sides. So it is just something within the--
William H. Rehnquist: Feeling good that day.
Marvin L. White, Jr.: --Yes, feeling good. I mean, I cannot explain that and we'll see what our court has to say about that maybe.
Byron R. White: Was there a request for another peremptory here?
Marvin L. White, Jr.: In this case?
Byron R. White: Yes.
Marvin L. White, Jr.: No, he said we're not asking for an extra one, we're just asking you to give us back the one that you erroneously made us use. We didn't ask for an extra one; we just said, correct your ruling on this earlier thing.
John Paul Stevens: Can I ask you. I must confess this case confuses me. Every time I look at it I seem to see it differently. But on page 49 of the joint appendix, in the Mississippi Supreme Court's discussion of the case they point out that the trial judge refused to excuse there jurors and required the state to exercise peremptory challenges. And it says: "It is abundantly clear from the record that his reason for doing so was because he believed that the jurors were simply claiming to have conscientious scruples against the death penalty. " and so forth. Should we... what if we were to take that as a finding of fact that all of those, the judge correctly concluded that those jurors were shading their testimony or lying? If that were true, then would it not also follow that the trial judge correctly required the state to exercise its peremptories?
Marvin L. White, Jr.: Well, that is one way to look at it, I think, that it could have been that. I think that what he's saying, what the court is saying here, though, is that what he believed at the time... maybe they don't say that there, but that what he believed at the time that he was doing this. And that's why they go ahead and reach the conclusion they do. I think that if it had been clear from the record that these people were in fact shading their testimony or whatever... but I think that comment in there about the judge saying, I had one or two, I think that that throws a whole different light on it. You know, I just had one or two, not five but just one or two.
Antonin Scalia: Well, but isn't the answer that the Supreme Court's opinion later makes it clear that the Supreme Court, does not, does not think that there was a finding of fact that these jurors were lying? I mean, on page 52 they say: "Although the route taken to Mrs. Bounds' dismissal was a circuitous one indeed. " blah-blah-blah-blah, "the force and effect of the trial court's ruling was to correct an error he had committed. " So the Supreme Court acknowledged that the trial judge wrongly thought these people were dissembling.
Marvin L. White, Jr.: Sure, and I think that's what it is. I think they're saying at that earlier point, just pointing out what he thought at the time when he did it, but he was in error thinking that. And we're saying that when he finally came down by using the word "cheated" and all that, he's realized his error there.
Antonin Scalia: Well, that's certainly how I understood it.
Marvin L. White, Jr.: Yes. I mean, that's the way I interpret that. So I think that this is the prime case for the application of a harmless error rule. I was saying that the fair cross-section argument that Petitioner makes, saying that Lockhart does us no help, gives us no help, is that he says that the fair cross-section somehow applies to the guilt phase, but does not apply to the sentence phase, which if I remember it all right the whole purpose of Lockhart and Witherspoon and all this to remove these people from the jury was for the sentence phase. So I don't think we get into a fair cross-section. He's saying that it just diminishes the fair cross-section arguments. The Court held, of course, in Batson... I mean, in Lockhart... that the fair cross-section argument does not apply to the petit jury, just to the box that the jury is drawn from, the venire is drawn from.
Antonin Scalia: Mr. White, how clear is it that, assuming the mistakes hadn't been made and assuming they were mistakes concerning the earlier refusals to dismiss for cause... assuming those mistakes had not been made, how do we know that the peremptory challenges that the state would thereby have had in its pocket wouldn't have been used up by the time this juror came around?
Marvin L. White, Jr.: Well, as I said, in the method of choosing jurors, the jurors are numbered and they are put in there numerically. As they are... as one is removed, the next one comes in. So you don't get any just random sampling. It's the next one of numbers that come in and take their place in the box. So only the jurors that actually were in that jury would have been the jurors there at the time that Mrs. Bounds was there. Am I making myself clear?
Antonin Scalia: If that's in answer to my question, I don't understand it. What I'm concerned about is that the state, assuming that the trial judge had ruled correctly--
Marvin L. White, Jr.: Okay.
Antonin Scalia: --initially and had not required the state to use its peremptory challenges, right, how do we know what those peremptory challenges wouldn't have been used up on some other juror before this juror, before Mrs. Couch? What was her name?
Marvin L. White, Jr.: Because of... Mrs. Bounds. Because those jurors in between, those stricken jurors--
Antonin Scalia: Right.
Marvin L. White, Jr.: --and Mrs. Bounds are the same ones that are sitting there. They would have been the same ones sitting there. In other words, the error was not pointed out to the court again until Mrs. Bounds got there: You've made us use our peremptories.
Harry A. Blackmun: Yes, but he might have used the peremptories if he had had them at hand.
Marvin L. White, Jr.: But we have... he did use some peremptories in the meantime and strike other jurors in between those five and Mrs. Bounds.
Antonin Scalia: When was the last one before Mrs. Bounds?
Marvin L. White, Jr.: I'm not just sure.
Antonin Scalia: What I'm saying is that if there were, you know, five people that came in before Mrs. Bounds, if he had had another three peremptories he might have used up those three.
Marvin L. White, Jr.: Well, that's true. But the record shows that the jurors that came between the last strike and Mrs. Bounds were not stricken for peremptory challenges and, you know, there was no request at that time.
Antonin Scalia: Of course they weren't. He had none.
Marvin L. White, Jr.: Yes, but I mean he didn't ask for any, either. And he didn't become concerned about this until Mrs. Bounds got there. He found those jurors acceptable.
Harry A. Blackmun: Well, maybe his concern was less with them than with Mrs. Bounds. But if he had had the peremptory he might have used it anyway.
Marvin L. White, Jr.: He very well may have.
Harry A. Blackmun: So it's all speculation that we're dealing with.
Marvin L. White, Jr.: Well, I think that it's reasoned speculation, though. I think from looking at the record and seeing what those other jurors said, those jurors in between there did not equivocate at all. They didn't present a situation in which it can be reasonably discerned he would have had to use a strike. I think we have a record, whereas in Davis versus Georgia we didn't have a record and they were trying to use peremptory challenges after the trial was over. Here everything went on at trial and is of record. We have a different situation here.
William H. Rehnquist: Thank you, Mr. White. Mr. Volinsky, do you have something more? You have six minutes remaining.
Andru H. Volinsky: Thank you, Your Honor. Just very briefly, I'd like to go back to the point of whether or not the five jurors were erroneously stricken. Looking at the Mississippi Supreme Court opinion that deals with this issue, maybe I'll confuse it more, but I'll take my try. Justice Dan Lee at 47 starts discussing the problem with the excusal, and he goes through this dissertation about the twelve angry men and how jurors are often reluctant to serve, and really capsulizes the problem. He then talks about how voir dire should have been done by the trial judge. And then on page 49 he discusses that it is abundantly clear from the record that the trial court refused to strike because he believed them insincere. After that, there is never a finding that the trial court was wrong in believing them insincere.
Antonin Scalia: He says: "There is no logical reason not to allow the trial court in this situation to correct its erroneous ruling. "
Andru H. Volinsky: It's correct the erroneous ruling if you misunderstand Witt, and I think that's what happened with the Mississippi Supreme Court. If this trial judge didn't believe the attestations of the jurors, they shouldn't have been excused. And I think this court, this State Supreme Court, doesn't argue with the--
Antonin Scalia: "Notions of judicial economy make it clear that the trial court should be allowed to recognize and correct its error early in the proceedings. " I interpret that to mean its error, its error in the dismissal of the other jurors, or refusing to--
Andru H. Volinsky: --I guess my concern is that this record doesn't support your interpretation. This trial judge at the very end of the colloque that we've been talking about at the trial is given a very clear chance on a motion of the prosecutor to reverse the five earlier rulings. And he says at the very, very end, he says, I am not going to do it, I'm not going to go back and give him five more. He refuses affirmatively, affirmatively refuses to go back and change his earlier rulings. This trial judge did not correct prior rulings because he didn't change them. I would also argue that his excusal of Mrs. Schleh on cause grounds showed that he knew how to... he knew what Witherspoon was about and could apply it when he thought the jurors were sincere and could refuse to apply it when the jurors were insincere. Additionally, there are a number of places in the record where the trial judge and the prosecutor talk about jurors using this as an excuse to get off the jury. The prosecutor asked Mr. Lassabe: "Do you believe that or are you just telling me that to get off the jury? " I think it was a clear problem, a problem that could have been corrected as soon as it raised its head by stopping, excusing everyone else, and going to an individual voir dire. But once we got to Mrs. Bounds, I think Justice Blackmun is absolutely correct, the only way to fix the problem is to throw everyone out and start over again. Just as a matter of record, this wasn't a special venire. This was the regular venire that was summoned here. The prosecutor... the judge had talked the defense lawyer out of a special venire because you had to tell the jurors that they were being summoned for a capital case, State versus David Gray, and they all agreed that they didn't want jurors looking out for the David Gray publicity. So this was just the regular venire of a couple hundred people.
William H. Rehnquist: Thank you, Mr. Volinsky. The case is submitted.
Andru H. Volinsky: Thank you, Your Honor.
Speaker: The Honorable Court is now adjourned until Monday next at 10:00.


Earl Warren: Number 423, Government and Civic Employees Organizing Committee, CIO, an Unincorporated Association, et al., Appellants, versus S. F. Windsor et al. Mr. Shadur.
Milton I. Shadur: Mr. Chief Justice, may it please the Court. This case is an appeal from a judgment of the three-judge District Court for the Northern District of Alabama, Southern Division. That Court refused to enjoin the enforcement of the Alabama Solomon Act against the attack of the appellants here, claiming that that Act violated the Fourteenth Amendment. Now, that Act is set out at pages 2 and 3 of our brief. And with the Court's indulgence, I would like to call attention to its most relevant provisions which began with the first section. The first section defines a labor union --
Earl Warren: Where is that to be found, please?
Milton I. Shadur: Pardon?
Earl Warren: Where is it --
Milton I. Shadur: At pages 2 and 3 of our brief --
Earl Warren: Of you brief?
Milton I. Shadur: -- for convenience. A labor organization is defined as any organization of any kind in which employees participate for the purpose of dealing with one or more employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work. Then, Section 1, goes on to define public employee briefly as any person who is compensated in whole or in part by the State or by any state agency. Now, Section 2, which is the key Section of this statute, provides very simply that any public employee who becomes or remains a member of a labor union or labor organization or who participates in that union automatically forfeits all employment rights, benefits, and privileges which he has as a public employee. Section 3, to which I'll refer a little later, specifically excludes from the operation of the Act, all teachers, all employees of the State Docks Board, those are people who work for the railroad which is owned and operated by the State, and that further excludes all city and county employees. Now, the issues in this case, as we have stated them, are whether consistently with the Fourteenth Amendment, a State can constitutionally bar a state employee. In this case, a man who is a retail liquor sales man in a state-owned and operated liquor store, from his job and any other public employment solely because he belongs to a labor union, whether the State can compel that employee in order to retain his employment to resign his membership in that organization because one of it's ultimate purposes is the attainment of collective bargaining relationships with Government, with the people with whom it deals when and only when the State permits such collective bargaining to be carried on. Whether the Fourteenth Amendment permits the exercise and protects the exercise by that state employee of his rights of voluntary association, his rights of free speech, when those rights are exercised through his membership in a labor union. And finally, if and only if all these questions are determined against us, whether the State can limit that prohibition so that it excludes that prohibition from city employees, county employees, employees who are already organized in the labor unions. Now, the defendants don't join issue with us on these issues. They contend that the very nature of this union is such that collective bargaining is an inherent purpose which it says, cannot be abandoned voluntarily except through certain technical procedures which it says have not been followed that a person who belongs to this union can't give the State of Alabama his undivided allegiance and that the State can prohibit membership in point of union in order to ensure that undivided allegiance.
Felix Frankfurter: Mr. Shadur.
Milton I. Shadur: Yes, sir?
Felix Frankfurter: Sorry to interrupt you very early, but I would be able to follow your argument and meet the argument of this case much more understandingly if you'd be good enough to answer one or two questions as they're not clear in the –-
Milton I. Shadur: Yes, Your Honor.
Felix Frankfurter: As I understand the decree from which we are appealing in the light of the opinion of the District Court of Judge Reed's amended rules. It didn't go to the merits. It didn't go to the issues that you've just summarized at all, as I understand it. It adhered to the earlier decision which came here in which that Court held that it can't tell what the statute means until the state court has elucidated its quote and meaning that that which the Alabama Supreme Court decided in 262 Alabama, merely said that this is -- within the terms of the statute, but it didn't tell you what the term of the statute -- it didn't -- it's within the range of the statute, but it didn't tell you what the contents are that brings somebody within. Would you please tell me what all that means?
Milton I. Shadur: Well, Your Honor, as I understand the --
Felix Frankfurter: In other words, what they say, is it premature they're still holding the case? You get a constructive statute, non-concept of state -- the Supreme Court of Alabama will so construe it that to take away any claim of unconstitutionality?
Milton I. Shadur: No, Your Honor, that's not the way I read the District Court opinions. The first time that the matter came before the District Court, it did not have the benefit of the judgment of the Supreme Court of Alabama. At that point, it withheld jurisdiction. Now, however, there has been a specific adjudication by the Supreme Court of Alabama, not as a matter -- not only as a matter of language, but a specific holding on the identical record which is before this Court which was incorporated by reference before the United States District Court.
Felix Frankfurter: Well, then, tell me what that sentence mean. After the federal reading and consideration of the final decree of the Circuit Court of Montgomery County in equity and of the opinion of the Supreme Court of Alabama, here before mentioned, it is clear to us that the Alabama Court says not construed but the -- the Solomon has entered in such a manner as the arraignment on constitutional. Of course, we cannot assume that the state court will ever so construe such statute. What does that mean?
Milton I. Shadur: As I read that, Your Honor, that's simply saying that we have seen and read the application of the Solomon Act to these people, the plaintiffs in this case. But so reading that application, we do not find that to be an unconstitutional application.
Felix Frankfurter: Now, what has the Alabama Supreme Court said the statute means?
Milton I. Shadur: The Alabama Supreme Court has said and its judgment is what speaks for the Alabama Supreme Court. It has a firm, a judgment below of the Circuit Court of Montgomery County which held that plaintiff union, its activities and its members all as described in the complaint are subject to the provisions of the Solomon Act.
Felix Frankfurter: But does that tell me what the provisions of Solomon Act are as construable by a court?
Milton I. Shadur: Yes, Your Honor. It's near --
Felix Frankfurter: About this morning, any instance and if you couldn't tell from a statute what it means, you have to get the court to tell you.
Milton I. Shadur: But we now know, You Honor, exactly what the statute means because we can't --
Felix Frankfurter: Well, then, you don't know more than I do, known outside where the Alabama Supreme Court opinion.
Milton I. Shadur: I agree that the Alabama Supreme Court opinion does not tell us, but the Alabama Supreme Court judgment does and it's the judgment –-
Felix Frankfurter: Where is that judgment?
Milton I. Shadur: -- which is determinative here.
Felix Frankfurter: Where is that?
Milton I. Shadur: The judgment is a judgment of affirmance.
Harold Burton: That's the one on page 30 of your --
Milton I. Shadur: At page --
Harold Burton: Beginning on page 30 of the Appendix B of your statement of jurisdiction?
Felix Frankfurter: No, that thing -- (Inaudible) That -- Mr. Shadur says it doesn't tell us what the statute means.
Milton I. Shadur: In that paragraph --
Felix Frankfurter: Of the Circuit Court judgment is on page 28 of your --
Milton I. Shadur: Page 144, Your Honor.
Felix Frankfurter: Of the record?
Milton I. Shadur: Of the record.
Felix Frankfurter: 144.
Milton I. Shadur: It gives us the judgment of the Circuit Court of Montgomery County. That's a judgment, which in the second paragraph, after holding that the Court had jurisdiction. States and holds that the statute of Alabama applies to complainant. That's the plaintiff union in this case, its activities and its members all as described in the complaint. We have then a fact situation which has been presented to the Court. The Court makes a ruling that under that fact situation, this organization is a union, a labor union, a labor organization within the meaning of that statute. The case then comes to the Supreme Court of Alabama and the Supreme Court of Alabama affirms that judgment. And that, Your Honor, is -- what we say is the binding application of the Solomon Act to our party here.
Felix Frankfurter: I understand that, but I still don't know what it is that you're forbidden or not forbidden that you're required to do or required not to do under the Solomon Act. And if the strange thing to have neither the Supreme Court of Alabama tell me that nor the District Court in which Judge Reed is a senior member.
Milton I. Shadur: Your Honor, there is one thing that is clear, the complex of activities that this plaintiff union has engaged in as described in the complaint and as found in the record is in fact prohibited by the Solomon Act because that's an authoritative construction by the Alabama courts.
Felix Frankfurter: Now, that's an awful -- awful vacation undefined, for me, undefined scope of an injunction.
Milton I. Shadur: Your Honor, I can't tell you whether I had this organization done two things less. It might not had been subject to the Act, but the thing that is certain from this record is that the things which it did have been held subject to this Act and we say that an organization which has done these things cannot be an organization in which membership is prohibited for all state employees as has been done by the Solomon Act.
Felix Frankfurter: And I tell from this record -- and I tell from this record what particular thing carved out from your activities if you cease to do would still be allowed in the Solomon Act and what -- be held by the Supreme Court of Alabama not to be within it?
Milton I. Shadur: No judge, but that's not relevant, Your Honor.
Felix Frankfurter: Therefore -- therefore, do I understand this then, that it's your burden to show that no single thing in that -- in your activity may be prohibited by the Alabama Legislature, is that right?
Milton I. Shadur: Yes, Your Honor. I think that's correct.
Felix Frankfurter: Your burden then is, you -- you say this means to you that everything that you set forth in your complaint seeking to enjoin the Act is not -- is non-enjoinable, because if something in it is enjoinable and that hasn't been carved out, non-concept but that's enjoinable, and therefore, your complaint is all good. I must state, it's a very -- it's a very obscure basis on which to enjoin the state Act.
Milton I. Shadur: I agree, Your Honor that the --
Felix Frankfurter: I'm not talking about constitutional law. I'm talking about the respect due by a District Court in enjoining state legislation. And we know very well the law that brought about the three-judge court against the readiness of district judges to declare a state legislation unconstitutional.
Milton I. Shadur: But Your Honor, we have a fixed application of the Act to our party, and that application is the thing which we say is unconstitutional here.
Felix Frankfurter: But -- but you agree that you must say that nothing that you do, everything that you do must be -- cannot constitutionally be -- be touched by -- by the -- by Alabama, is that right?
Milton I. Shadur: That's correct, that our activity must be -- as it is described in this complaint is constitutionally protected against the state action which the Fourteenth Amendment has been intended.
Felix Frankfurter: Every item, every item.
Milton I. Shadur: Every item as described in the complaint, yes, Your Honor.
William O. Douglas: Now, we have --
Felix Frankfurter: So that --
William O. Douglas: -- two types of plaintiffs, one is the union and the other is the members, is that right?
Milton I. Shadur: Yes, Your Honor.
William O. Douglas: So, you had that burden as respects to those two, each of the two.
Milton I. Shadur: Yes, Your Honor.
Harold Burton: And while you're on that Supreme -- Supreme Court of Alabama on which there's nothing about pulling it constitutional and you -- you interpreted as in feasibly holding a constitutional for it is passed on constitutional question itself?
Milton I. Shadur: Yes, Your -- yes, Your Honor. That was in the argument to the Alabama Supreme Court.
Felix Frankfurter: Well, the – it's non-concept as Alabama and we know the -- the diversity of the state rulings as the implication of Justice Burton's question. When I read that Alabama Supreme Court opinion, I first thought that all they decided and I'm not still clear that it isn't all they decided. We, now telling you're within it. We're not called upon to tell you whether it's unconstitutional.
Harold Burton: That's what they said explicitly, that we tell you within it and said nothing about the constitutionality.
Milton I. Shadur: Yes, Your Honor. That's correct. The sole -- the sole effect of the judgment was to state that this organization, its activities, its members as described in the complaint is a labor union within the meaning of the Solomon Act and people who belonged to this organization are subject to all the penalties of the Solomon Act.
Harold Burton: And it can't be subject that it's constitutional?
Milton I. Shadur: That -- that must necessarily follow and that's why we're here today, Your Honor.
Felix Frankfurter: Well, I don't see they necessarily follows. It's maybe merely a declaration that you're within it.
Charles E. Whittaker: Well, isn't that all you sought, sir? It wasn't your action one for an injunction upon the ground that you were not involved, a labor union or a labor organization within the meaning of the Solomon Act.
Milton I. Shadur: That is correct, Your Honor.
Charles E. Whittaker: Now, they simply determine that you were a labor union or a labor organization within the meaning of the Solomon Act.
Milton I. Shadur: Yes, Your Honor.
Charles E. Whittaker: That's -- that's the some total of it, isn't it?
Milton I. Shadur: Yes.
Felix Frankfurter: Well, but that's an abstract declaration.
Milton I. Shadur: But it's not an abstract declaration, Your Honor, because it's a declaration with respect to facts which are in the record. It is not a hypothetical case. It is a case dealing with facts.
Felix Frankfurter: You said it's hypothetical, abstract is something else again. I mean by that, they merely say, "We now tell you, you're within the term of the Act." But whether you -- whether you want to contest it, whether you are subject to the penalty, is that another story and come again if you want us to pass on that.
Milton I. Shadur: No, Your Honor.
Felix Frankfurter: The state court might do that if it wanted or couldn't it? That was (Voice Overlap) --
Milton I. Shadur: No, Your Honor, because the judgment not only went to the -- being subject to the Act, but in the opinion itself. The Court stated that there is no question that a person who is a member of this organization is subject to the penalties of the Solomon Act.
Felix Frankfurter: Well, they gave you notice. What are the penalties? Are they penal?
Milton I. Shadur: The penalties of the Solomon Act that's served -- stated or -- are the forfeiter --
Felix Frankfurter: Any penal provisions? Any penal --
Milton I. Shadur: No, Your Honor, lost of employment, lost of all employment rights
Felix Frankfurter: Am I wrong in recalling and -- and they will be. Isn't Alabama one of the States that does give advisory opinions? I -– not --
Milton I. Shadur: I'm not --
Felix Frankfurter: -- the constitution
Milton I. Shadur: I'm sorry --
Felix Frankfurter: -- but they can't be.
Milton I. Shadur: -- I can't answer that question, Your Honor.
Felix Frankfurter: I think --
Milton I. Shadur: I don't know.
Felix Frankfurter: -- well, it's a very -- I tell you at the outset, my prejudice, my personal -- not prejudice but bias against declaring a state Act unconstitutional on such a speculative and argumentative record. I'm not saying you can't deal with my advice. I'll just say that I call it a bias out of deference. I think the good sound principle not to knock out state legislation revenue.
Milton I. Shadur: Let me see if I can deal with that bias for a moment and see exactly what these activities are which were involved in the -- in the record that was before the Alabama Court and on which have nevertheless held that the Solomon Act apply. Before the -- before the Solomon Act was passed, the plaintiff union had asked the authorities of Alabama for collective bargaining. And specifically, the administrators of the Alcoholic Beverage Control Board which I'll call the ABC Board. Now, that right was denied to them and when that denial was made, they, thereafter, exceeded to that denial, and they, thereafter, did not assert either a right to bargain collectively nor a right to strike. And I might say that that – their act ceding to do that was in accordance with the objects of this union. The objects of this union are stated and the one relevant here to increase the wages and to improve the conditions of employment of our members by legislation, negotiation or other legitimate means. In other words, at that point, the union became as described by the only witness on this subject basically a discussion group. I'll get to the other activities which have engaged in just a moment, but it proceeded to discuss with its members privately and at meetings, such things as federal social security legislation, public housing, economic and political issues, civil rights, political candidates. Now, defendants have stressed two items of activity which they claim are inconsistent with this characterization, a plaintiff union as a discussion group. The first item of activity is -- and these are conceded, there is no question about this. These are part of the record. Plaintiff union and its members discussed the pros and cons of prospective legislation to provide for collective bargaining for state employees, and they thought about sponsoring that legislation. Similarly, when the Solomon Act was proposed in the state legislature, plaintiff union and its members contacted their legislators to try to defeat that Bill. Now, the other item of activity that defendants urge is that prior to passage of the Solomon Act, a representative of plaintiff union as part of its practice of assisting its members in connection with their individual employment problems appeared before the Alabama Personnel Board with some of those members to help settle the grievances which had arisen. Now, promptly after passage of the Solomon Act, the defendant's predecessors sent copies to the Bill to all the liquor stores and stated that all the employees had to sign those to confirm the fact they had read the Act. Plaintiff (Inaudible) and all the other ABC Board employees did in fact initial the Act. Immediately after that, the -- as the witness -- only witness on this subject stated, “The membership simply evaporated from 250 to 300 members. The union went down to a point where plaintiff (Inaudible) and perhaps one other member remained. Plaintiff (Inaudible) stated that he remained a member because he believed that he had a right to be a member of this organization in the same manner that he had a right to belong to his church. Now then, we filed suit in the District Court to which Mr. Justice Frankfurter has referred asking injunctive relief against the enforcement of the Act. The Court at that time withheld the exercise of jurisdiction, it abstained. That abstention came before this Court and was affirmed by this Court. At that time, no construction of the statute had been obtained from the Alabama Courts. At that point, suit was filed in the -- in the Circuit Court of Montgomery County. The judgment in the Circuit Court was that the Act did apply to plaintiff union, its members and activities as I have described those activities. There are no other elements which are in the record describing plaintiff's activities, plaintiff union's activities as they have been held to be subject to the Solomon Act.
Felix Frankfurter: I'm sorry, I didn't hear you. I may have been not inattentive, but looking at something else, in dealing under to that sense. Did you state that this union was -- was organically related to the CIO?
Milton I. Shadur: Yes, Your Honor. Originally, it was formed by the CIO as an organizing committee. An organizing committee is a step prior to the formation of an international union. And it has -- has been stated in the -- in one of the footnotes in our original brief, consequently to the merger between the CIO and the AFL. This union has merged with its AFL affiliated counterpart, but under the merger agreement, every member of this union becomes and remains a member of the merged union and all the rights also carry over so that the provisions are applicable to this Court.
Felix Frankfurter: But in -- in the burden that is yours, you have to contend that this union merely because it is -- it has a -- a tie with as part of the merger of -- of the CIO union, but that's the difficulty that if you do everything so far as doing sponsoring them, it could do everything it's doing, provided it did it on its own. Is that in the case for all we know? For all we know, the Supreme Court of Alabama might say, "You can carry on all the activities, but you can't carry it on affiliated with the AFL and CIO.”
Milton I. Shadur: No, Your Honor. I don't believe that is in the case.
Felix Frankfurter: Well, how do you know it isn't? How do I know it isn't?
Milton I. Shadur: Well, the -- there is --
Felix Frankfurter: How do I know it isn't?
Milton I. Shadur: -- there is a specific area of activity which has been held subject to the Solomon Act. I think that's --
Felix Frankfurter: In spite of -- the Supreme Court of Alabama refers to this time and for all I know, that's the difficulty in the eyes of the Supreme Court of Alabama. Needless to say, I'm not talking about myself. Do you think there might be -- for one -- for one person, for me, might there be a legal, a different legal question to outlaw these activities as such and to outlaw the collective doing of those activities as part of the AFL-CIO. Might there not be a legal difference?
Milton I. Shadur: Your Honor, each of the provisions of the CIO constitution to which they refer in the Alabama Supreme Court opinion as part of the complex of this activity which is subject to the Solomon Act is also part of the organization as it stands there.
Felix Frankfurter: That is not the same thing though. It's one thing for me to do something on my own. It's another thing for me to do something, connects with somebody else. I'm not saying that's a valid distinction. All I'm saying, do I know on this record that that is in the sticking point with Supreme Court of Alabama?
Milton I. Shadur: I think that --
Felix Frankfurter: Do I not -- am I not entitled to think that it might be the sticking point for it?
Milton I. Shadur: Your Honor --
Felix Frankfurter: It's the same thinking of which you've had in their opinion.
Milton I. Shadur: The sticking point for the State of Alabama as far as this case is concerned is the entire area of activities that's involved.
Felix Frankfurter: You have no -- I don't think you're justified in saying that. That's my point that I do not know on what ground the Alabama Supreme Court went.
Milton I. Shadur: Oh, but we must, as Your Honor has correctly pointed out, state that each one of these activities is -- is inherent in the holding. That we don't know whether one of these being subtracted would nevertheless result in our being held subject to the Act.
Felix Frankfurter: I don't make myself clear. There are two things for me. One, the activity that people in Alabama engages. Two, the fact that they engage in -- engage in those activities as part of a nationwide, almost an international organization.
Milton I. Shadur: Your Honor, this organization continues to engage in those activities, still as part of a nationwide organization with the same purposes. I submit that the record that as before this Court is in no way changed by the fact that it is now part of an AFL-CIO rather than that it is a part of a CIO.
Felix Frankfurter: I'll ask you one more question and I'll desist. Is it -- is it therefore my understanding that one is to pass, one -- that the issue before us is whether the State of Alabama may, while allowing membership, while allowing its employees in various branch of its government to organize in and of themselves may prohibit them from being part of the AFL-CIO organization? Is that the issue before me?
Milton I. Shadur: No, Your Honor, I don't think so.
Felix Frankfurter: All right. How do I know it isn't? Leave the opinion to the Supreme Court of Alabama.
Milton I. Shadur: I have done so with some difficulty into some way.
Felix Frankfurter: Well, you encourage me, because I have nothing to do with that.
Milton I. Shadur: Now, I submit to the Court that the construction and by construction, I would probably better use the "application" that the application that has been made of the statute by the Alabama Supreme Court, an application which applies to this union and to its members as those activities are described in the complaint and which I have now described is an unconstitutional application. And I don't believe that it requires really a great deal of constitutional citation for that purpose because before and now, the cases to which we have referred in our brief, the Wieman case, the Slochower case, Adler, Garner. All those cases have involved a conflict between a state interest and an interest of the government employee. I submit, if it pleases the Court, that there is no legitimate state interest which is here involved being protected as a price for taking away the constitutional rights of these individuals. There is no reasonable relationship between the fact which is the only fact required for this disqualification for employment that is the fact of union membership. There is no reasonable relationship between the fact of union membership and unsuitability for public employment. And yet, the Solomon Act specifically states and the Court, I submit, has read it in fact literally that any public employee who is a member of this labor organization loses his rights of employment. And labor organization is defined not as an organization in which there is insistence on collective bargaining with the State of Alabama because that's not in this case nor is that an organization which insist on the right to strike because that's not in this case either. It is only an organization in which employees participate for the purpose of dealing with one or more employers concerning these elements. Now, there is no question, but that this organization, the Government and Civic Employees Organizing Committee does deal with one or more employers regarding these things because it is an organization that does not restrict its activities to the ABC Board and where those activities of negotiation and bargaining are permissible under state law, it does engage in them. But where those activities are not permissible as they were advised by the defendant's predecessors in this case, there was no insistence on that so that what we have is the bare activities which are described in this complaint, discussion, the sponsoring of legislation, the opposition to other legislation and the processing of individual grievances. Only those activities are involved in this case and those activities have been specifically held to subject this union and the employees who are members of this union to the penalties under the Solomon Act. I submit that the due process question in this case virtually answers itself. This cannot satisfy the terms of this Court's statements in the Slochower case, the Wieman case, which require that before there can be restrictions on government employment, those restrictions must be reasonable. They must not be arbitrary. They must bear a relationship to this valid state purposes sought to be obtained. Apparently, the defendants would equate the idea that a government -- that a person does not have a right, the constitutional right to be a government employee with the conclusion that a government employee does not have constitutional rights, but of course that is not the case. I think that -- perhaps the best characterization of the Alabama position with respect to the activities of this organization is found that they're -- at pages 16 and 17 of the appellees' brief in which they refer to the witnesses -- witness battle, the union organizers' testimony as to sponsoring legislation and say, “This testimony not only tends to show that the union is not a mere discussion group as claimed, but that the union and the state employee members thereof have engaged in sponsoring collective bargaining legislation for state employees and -- and have attempted to defeat legislation which prohibits collective bargaining. As individuals, the constitutional right is there, but as state employees, it is not. Such action is contrary to the declared public policy of the State of Alabama. I submit, Your Honors, that the third public policy of the State of Alabama cannot prevail over this Court's decisions with respect to the scope of due process protection. Now, what do defendants fallback on? They turned to cases and various State Board cases in which it has been held that policemen and firemen may be prohibited from engaging in union activity and indeed from unionization. But each one of those cases was rested specifically on the proposition that there are special problems, special semi-military problems which relates to policemen and firemen. They -- each one of them has rested on the proposition that the police and fire departments are in a class apart. Both are at times charged with the preservation of the public order and for men, of all reasons, they owe to the public their undivided allegiance. The power in the state of complete control is imperatively necessary if discipline is to be maintained. Now, even if those decisions are available, and that's a problem that will come before this Court in another case which is now pending on its document. That statute, those cases and the statutes and ordinances which relate there would not control this case because there you have the narrowly drawn statutes dealing with perhaps a permissible problem. But the same considerations of this public order, safety, unqualified discipline which apply to the policemen and firemen do not apply to permit the prohibition of union organization and participation among all state employee. Plaintiff (Inaudible) is certainly not in a class apart. He is a liquor store clerk. Indeed, the Solomon Act actually accepts from its application, these policemen and firemen as city and county employees indeed in anomalous result if the purpose of this Act, the purpose of a legislation is to ensure the undivided allegiance, the necessary maintenance of complete discipline. There is no question that public employment and private employment are different. Defendants urged that at length and we certainly agree, but what defendants fail to recognize, or perhaps refused to recognize, is that the basic difference between those two types of employment is what brings us into court today. That is that the public action, the public employer when he acts engages in state action which is subject to the requirements of the Fourteenth Amendment and the state action which is represented by the Solomon Act violates the Due Process Clause of that Amendment. I might refer just --
Earl Warren: Mr. Shadur, you --
Milton I. Shadur: Yes, Your Honor.
Earl Warren: -- you mentioned that it was an anomalous situation that they would -- would prohibit the state employees and not city and county employees in joining such organization. Do you claim that it's more than an anomaly or did you --
Milton I. Shadur: Yes, Your Honor, we claim that that -- that that and I was about to speak to that, that that in itself is an arbitrary discrimination which does two things. First, it breaches the Equal Protection Clause, because the -- the exclusion from themselves are arbitrary with respect to the coverage that are brought there. And secondly, I think it points up even more sharply the fact that the statute itself is discriminatory because in the absence of those exclusions, they might make an argument. I don't say that it is justified by this record and in fact, it is not, that the purpose of the statute is to guard against the attempt to fix terms and conditions of employment by collective bargaining, but --
Felix Frankfurter: Do we know -- do we know what the scope of autonomy or a home rule as the phrase runs gave in Alabama City and county? You've indicated that the Docks Board has charged in railroad --
Milton I. Shadur: Yes, Your Honor.
Felix Frankfurter: -- owned by the State, restitute to that, is it?
Milton I. Shadur: Yes, Your Honor. That is --
Felix Frankfurter: It was where --
Milton I. Shadur: Well, it's not restricted to that but the employees who are referred to here are the railroad employees, yes, Your Honors.
Felix Frankfurter: (Voice Overlap) Are they subject to the Railway Labor Act?
Milton I. Shadur: Yes, Your Honor.
Felix Frankfurter: Are they members of the brotherhood?
Milton I. Shadur: They are members of several Brotherhoods of railroad employees.
Felix Frankfurter: And the classification relating as to that. Now, do we know -- how do I know what consideration has led the Alabama Legislature? I think there's a difference between employees of cities and counties as against state employees.
Milton I. Shadur: Your Honor, I submit that no consideration can be conceived which would justify the -- the exclusion of the city and county employees and the inclusion of the state employees, for this reason. When you have is -- was the case before this Court in the McAdory case to which defendants refer, when you have a situation in which a State is regulating an area of activity. At that point, it may exclude an area of -- part of that area which it considers is already ampli-regulated and that was this Court's holding in McAdory. But when the form of the state legislation is to prohibit absolutely an area of activity than to engage in exclusions from that prohibition which have no relationship whatever to any legitimate state interest cannot possibly satisfy the Fourteenth Amendment.
Felix Frankfurter: I -- I know that cities or agencies of the State as subject to state constitutional provisions, a State can rearrange, do anything it pleases with its cities. But how do I know there isn't a scope of home rule that leads the legislature of Alabama to say, “We let Birmingham and Mobile take care of that, they have ample power. I'm sure in the cities that I know about, city employees are differentiated in all sorts of way from state employees.
Milton I. Shadur: Your Honor, I -- the only distinction that exists here, because if you'll notice, the exclusions do not limit themselves, only to employees of cities or counties, they include the teachers, they include these employees of the state tax board. And the only --
Felix Frankfurter: The teachers they might make a distinction again in the case of teachers and against others.
Milton I. Shadur: But what are the distinctions as between them? Certainly, if there is any evil and neither defendants nor the state courts in the State of Alabama have ever articulated just what that evil is. But if there is any evil in the existence of union organization among state employees, how can it be said that that evil does not extend equally to these areas of completely arbitrary exclusion? There is one difference between them and that one difference is shown in Appendix A and that difference is that the people who are excluded are people who are already engaging in negotiation. Now, that, Your Honor, is certainly not a suitable distinction to excuse an exclusion from a prohibition against union organization to say, "Well, these people are already within the area of evil. They're already engaging in collective bargaining. Therefore, we will exclude them from the provisions of an Act which prohibits collective bargaining and union organization among state employees.”
Hugo L. Black: It is a fact is it that they have unions in all of these -- all of these accepted employments?
Milton I. Shadur: There is nothing in the record with respect to teachers. There is in the record as plaintiff's exhibit 12 which we printed as Appendix A to our reply brief, specific affidavit covering the fact that since 1936, the Railroad Brotherhoods have negotiated schedules of wages and rules covering the employees of the State Dock -- Docks Board and further that there are municipal and county employees in Alabama who are members of labor organizations that negotiate their wages, hours and working conditions.
Felix Frankfurter: Does it appear to -- with what international union, the local union who are affiliated in those domains?
Milton I. Shadur: Only with respect to the State Docks Board employees that refers to the fact that they are affiliated with the Brotherhoods.
Felix Frankfurter: Well, that -- that rest on -- that may well rest on different situation, namely, that they're part of a railroad system with relationships with other railroad et cetera.
Milton I. Shadur: But, Your Honor, that is not a matter of construction of the Act by the state court. That is a matter of a legislative exclusion and the legislative -- if the distinction between them had to do with the degree of affiliation with a union, an international union, then it would not be necessary to exclude them from the operation of the Act. That would take the course of the state determination by the Court as to what constitutes a labor organization if the total --
Felix Frankfurter: But what if a legislate -- a legislature may say that railroad employees whether on government-owned railroads, or on privately-owned railroads present a different problem from -- from all other employees?
Milton I. Shadur: But though, the --
Felix Frankfurter: The legislation of the Commerce of United States has taking note of that fact. We've taken note of that fact.
Milton I. Shadur: But the legislature has not so said. The legislature has said that irrespective of -- with whom the employees of cities or counties, with whom the teachers, with whom the employees of the State Docks Board maybe affiliated, we will exclude them from the Act.
Felix Frankfurter: And I'm suggesting that the teachers and the city and counties rest again on a differentiation of which the legislature again be might --
Earl Warren: I suppose in your State Docks Board, you have -- you have employees who are -- are not affiliated with the Brotherhoods, haven't you? Perhaps you have a great plenty people working around the -- the docks for the maintenance of the docks, the buildings and so forth and -- and they're exempted, too, aren't they?
Milton I. Shadur: Yes, Your Honor. That's -- that only appears in the record from inference because the exhibit 12 to which I referred states that substantially all employees belong to these organizations. It said it is -- it is true that --
Earl Warren: It's substantially all to the Brotherhood?
Milton I. Shadur: To the Brotherhood, but there are others which may belong to --
Felix Frankfurter: What's the population of the Dock Board employees? About what –- what magnitude?
Milton I. Shadur: I don't know, Your Honor. I don't know.
Felix Frankfurter: I didn't know that that Alabama also had a state-owned railroad.
Milton I. Shadur: Well, they seem to distinguish between the state-owned liquor stores and the state-owned railroads, whatever the basis for the distinction. I might advert before I close just very briefly to a -- an argument as to standing which was made by the appellees in the concluding portion of their brief. They state that the appellant union who does not have standing in this Court because this Court held in Hague against the CIO that only natural persons were entitled for the privileges and immunities that Section 1 of the Fourteenth Amendment secured for United States citizens. Of course, that has no application here. There is no question, although it may well be true that the labor organization is not a citizen for purposes of protection in the Privileges and Immunities Clause that it is most certainly a person within the meaning of the Equal Protection Clause and that is the Clause which we are invoking here. I submit, if it please the Court, that the Alabama Courts have construed the Solomon Act in the only matter in which the Court can ever construe an Act, that is by rendering a judgment on a specific record as to the applicability of that Act. On that specific record, it was held that the Solomon Act applies to this union and to the members of this union and their activities all as described in the complaint. That record is the identical record before this Court. I submit that there is no way in which it can be speculated as to the fact that on the record before this Court, the Alabama courts might hold otherwise because the Alabama courts have held specifically on this record that this union is subject to the Act. And under those circumstances, the constitutional question is squarely here and I submit there can only be one answer to that constitutional question. The Solomon Act, as it has been authoritatively applied by the Alabama Courts, violates the Fourteenth Amendment.
Earl Warren: Mr. Madison.
Gordon Madison: If Your Honor please, I'd like in a short time that remains to see if I can't -- to dispose of the argument that relates to any discrimination. When this case first went before the District Court for the first time, that Court took the position that the Act could be construed in a constitutional manner. It said it could have be construed as the prohibiting employees from belonging to the union for collective bargaining purposes. And then, it applied to doctrine of abstention which this Court later affirmed. Well, I don't think the Court would apply the doctrine of abstention to -- to say we are going to abstain to let the state court construe an unconstitutional statute. I think that is a determination in a sense that there is a constitutional way to apply the statute. So, that seems to me would get rid of the argument relative to being in any discrimination on faith of the Solomon Act.
Harold Burton: Can you satisfy the Supreme Court of Alabama to pass on constitutionality --
Gordon Madison: No, sir, not the Supreme Court of Alabama. I'm satisfied that -- that the District Court and this Court has -- has taken the position that it could be construed on a constitutional manner. They did not raise the question of constitutionality in the state court.
Harold Burton: Well, is it your position that the Supreme Court of Alabama has not passed on the question in the federal constitutionality with that?
Gordon Madison: They did not pass on the constitutionality. It was not raised in --
Harold Burton: It was not ready for a federal court to pass something?
Gordon Madison: Well, now, they'd probably like the federal court bend it in our state court so that way I can answer that too. As pointed out here, from some of the questions of -- from the bench, the legislative Alabama -- it prescribed the conditions of employment relative to immediate state agencies while cities, counties, school boards, the teachers there are the most agencies of the state. They're not to immediate agencies. And the legislature is leaving it to those different localities to determine for itself or themselves what they will do if anything with reference to public employees joined in labor union. Labor -- labor conditions in certain parts of State of Alabama and in certain cities and in certain areas may be one thing, and in other areas, it may be different. The labor relations may be fine in one area and it may be in certain respects if they would say that it would be objectionable to -- to cities and school system or the cities or the counties. And I think legislature had a right to -- to say, well, we will legislate this time, I guess with reference to the immediate state agencies which involved state employees. Now --
Earl Warren: Does it have the right -- does it have the right under your state constitution to regulate the conduct of employees in cities and counties?
Gordon Madison: Does the legislature have the right?
Earl Warren: Yes, yes.
Gordon Madison: I should say, sir, they'd have the same right with reference to them as they would with reference with the employees.
Earl Warren: The same with teachers?
Gordon Madison: Yes, sir.
Earl Warren: Yes.
Gordon Madison: Now, with reference to the -- the employees that are -- that belonged to the -- referred to as being employees of the State Docks, Section 3 of the Act, nor shall it apply to the those employees of the State Docks Board referred to in Title 38, Section 17, Court of Alabama 1940. Well, they are the railroad workers and it was thought that maybe the Railway Labor Act would have some application, maybe it had preempted the field and maybe legislature couldn't deal with those employees so it -- it left them out for that reason, that's why I think the legislature recognizes.
Earl Warren: Why they'll leave the teachers out?
Gordon Madison: I should -- my -- my idea would be that they -- they left the teachers out to enable the local Board of Education to determine, whether or not in that judgment, they want to make any provisions to refer that the teachers belonged with the union.
Earl Warren: How about the teachers in higher education, aren't they under the State?
Gordon Madison: Yes, sir. They get in a high educational system, the University of Alabama. I guess you might say they get a little closer to the --
Earl Warren: Why would they -- why would they eliminate that one?
Gordon Madison: Well, I can't direct you why, Your Honor, but -- as why do they leave them out, but I guess I -- I wouldn't talk to them, I would answer that question.
Earl Warren: Why would they leave out saying -- say policemen and -- and say firemen and county sheriffs and so forth?
Gordon Madison: You mean --
Earl Warren: Why would they leave them out when they -- when they took a -- a liquor sales?
Gordon Madison: Well, I want to -- the only the way that I can answer that question is that they leave it to the local unit to determine what they want to do with those people.
Earl Warren: Well, but my point is this, some of those are local and some of them were statewide. Now, is there anything to the argument of counsel to the effect that the legislature just said, "Well, those that are argued, we're not going to fight with. We -- we'll let that be a fat accompli, but as to others, we're going to -- we're going to prohibit it." Is there anything to that argument?
Gordon Madison: Because they –- they gave me a --
Earl Warren: Well, as I understood counsel, there were -- there were unions in the cities and in the counties among the employees. There were -- there were unions in the Docks, the State Docks employees. Now, did the legislature just say, as a matter of expediency, that we'll exempt all those who are organized but we will prevent those that are not organized from ever becoming organized, because that would bear on the question of whether it was a reasonable classification, I suppose.
Gordon Madison: I -- I don't think they did that.
Earl Warren: Well, what -- the thing I can't understand is, what is -- why did they eliminate some of these people and the people in higher education? Why -- why wouldn't – why wouldn't they be just as amenable to it as a -- as a salesman in the state liquor store?
Gordon Madison: Well, may I say Your Honor, it's improbably would be less likely to march back to force the liquor stores and it's unfair to organize labor, they might not insist on union, collecting the dues to check off I might say. There may be a number of reasons that I gave you as the legislation, I might say.
Earl Warren: We'll -- we'll recess now, Mr. Madison.
Gordon Madison: Thank you.