William H. Rehnquist: We'll hear argument next in No. 88-1847, Ford Motor Credit Company v. Department of Revenue of the State of Florida. Mr. Evans, you may proceed.
Mark L. Evans: Mr. Chief Justice, and may it please the Court: The issue in this case is whether Florida's tax on intangible property fails this Court's internal consistency test and violates the Commerce Clause. As I will explain in a moment, we think the case is controlled by the Court's decision in Armco, which struck down a facially discriminatory West Virginia tax that we think is indistinguishable from the Florida statute. The Florida tax is imposed annually on the full value of two different categories of accounts receivable notes and other obligations. One category is based on domicile, the other one is based on business situs. First, if a... an intangible asset is owned by a Florida domiciliary, it is subject to the tax without regard to its business situs. Second, if the intangible has a Florida business situs, which is defined in the statute to mean that it arose out of a sale of property in Florida, it too is subject to the tax, but only if it is owned by a nondomiciliary. There seems to be no dispute here that the tax fails a straightforward application of the Court's internal consistency test, and that is so because if every State had the precise statute that Florida has, a interstate company operating in interstate commerce, domiciled in one State, selling... financing sales in another State, would pay two taxes. One tax to his domiciliary State, under the domicile theory, another to the business situs State under the business situs theory.
William H. Rehnquist: Have we previously extended the internal consistency test to property taxes?
Mark L. Evans: Well, the answer to that is slightly involved in this sense. It has not been extended to property taxes in the name of an internal consistency test, but as we showed in our opening brief, the first instance that we could find of the Court actually using an internal consistency analysis was a century ago in a case involving a tax, a property tax, on the value of capital stock of a company that, that owned moving... moving rail cars. And to that extent we think, because we do think that the test itself, the analysis that underlies it is so deeply rooted, the answer to the question is, I think, that the Court has applied it to a property tax and in fact a tax in that case which was on intangible value. Just let me spell out again why I think there is a... why I think there is an internal consistency problem. If you're operating in two States... domiciled in one and financing in the other, you pay a domicile tax in effect to your domicile State, a business situs tax to your business situs State. But if you are operating in just one State, you pay only a domiciliary tax to your home State. The result is that an intrastate company who confines its operations, its financing operations to just its own State, pays one tax, while its competitors have to pay two.
John Paul Stevens: Mr.-- --Suppose... go on. Mr. Evans, the thing that makes the tax burdensome is the tax on the domiciliary, isn't it?
Mark L. Evans: No, we don't see it that way. The tax is identical in our view to the tax that was at issue in Armco. Now, Armco had... Armco also had tax on... was taxed on two bases. One on manufacturing and one on wholesaling. Manufacturing tax applied to all manufactured goods in West Virginia. The wholesaling tax applied only to goods manufactured in another State. The party challenging that tax was somebody who manufactured in Ohio. We are in the same posture. The domiciliary portion of this tax applies to domiciliaries, regardless of where the business situs is--
John Paul Stevens: But you are not a domiciliary.
Mark L. Evans: --No, we're not. But we are, but we are a nondomiciliary, and the business situs tax that Florida--
John Paul Stevens: And the--
Mark L. Evans: --imposes applies only to nondomiciliaries, just like the West Virginia wholesaling tax, but only--
John Paul Stevens: --But just focusing on this for a moment, if they, if they collected... what... would it not be complete relief here to say they cannot collect taxes from domiciliaries except to the extent that the debts have a situs in Florida?
Mark L. Evans: --I think, one, that would be one solution to the--
John Paul Stevens: And do you have standing to insist that that be done?
Mark L. Evans: --We think we do.
John Paul Stevens: Are you prejudiced at all by the fact that domiciliaries may pay more taxes than you do?
Mark L. Evans: The question, Justice Stevens, is the interaction of this two elements of the tax. We're in--
John Paul Stevens: Well, I understand, but are you prejudiced at all by the fact that Florida domiciliaries may pay a higher tax than you do? That's the discrimination caused by this tax.
Mark L. Evans: --Well, the discrimination as we see it really isn't... is really interstate commerce versus intrastate commerce.
John Paul Stevens: Well, but you are not prejudiced by the fact that Florida domiciliaries must pay a higher tax than you do, theoretically, are you?
Mark L. Evans: Well, I... I can't answer that question no. We clearly are hurt by the system that's put up, and we are hurt in exactly the same way that the Ohio--
John Paul Stevens: You're hurt by the possibility you might be taxed in Michigan as a domiciliary.
Mark L. Evans: --No. We're hurt by the... by the prospect that we are... and the fact that we are taxed in Florida on the basis of the business situs of our intangibles there, where our competing intrastate local banks are not taxed on the basis of business situs. We are in exactly the same posture for standing purposes, Justice Stevens, as was the manufacturer in Ohio.
John Paul Stevens: I don't understand. Your intrastate competitors are paying taxes on the same accounts receivable, aren't they?
Mark L. Evans: They are paying taxes, but only under the... only under the concept of a domiciliary tax. The State applies, the State has a theory that both domicile and business situs contribute to the value of intangibles. And it... but it only taxes one of those things with respect to its own domiciliaries. It... it--
John Paul Stevens: But the tax is just the same as your tax.
Mark L. Evans: --Well, let me try to... let me just try to draw the parallel to Armco, because we don't think there is any distinction in principle--
Antonin Scalia: Well, I'd like to understand it without reference to precedents, is just how this whole thing hurts you. I just don't see it.
Mark L. Evans: --Well, let me... let me present it this way. We are subjected to a risk that... that a local Florida--
Antonin Scalia: That you might be taxed in Michigan as a domiciliary.
Mark L. Evans: --That is correct.
Antonin Scalia: That's the whole case, isn't it?
Mark L. Evans: Well, I think that's, that's a part of it. And the risk itself is not, is not a cost-free risk. We bear that risk every day when we compete in a very competitive financial services market in Florida, where the success or failure can turn on very small margins. And the risk is something we have to take into account when we, when we determine what our costs are. A Florida domiciliary knows that under no circumstances when he is competing against us for a Florida financing opportunity, or a contract that is a financing contract, he knows that he will never be taxed a second time on that... on that receivable, whereas we have to bear the risk that it will be taxed a second time.
Byron R. White: And you, I suppose you say that's a... you're permitted to raise this issue by the internal consistency rule?
Mark L. Evans: Precisely. And, Justice White, let me just, recognizing that there is an issue beside precedent, precedent does seem to us to be absolutely controlling and indistinguishable in principle. The party that sued in Armco was the Ohio manufacturer. The argument could have been made precisely the same way to him, that he is being discriminated against, or he has... his only complaint is the way that the State treats its own manufacturers. That was the internal consistency problem.
Antonin Scalia: The problem is that the whole, the whole internal consistency test is based upon prospective damage and not actual damage, isn't it?
Mark L. Evans: It is. That's correct. The test is--
Antonin Scalia: Because it doesn't matter whether you are actually being taxed twice, it's the theoretical possibility of your being taxed twice that causes us to apply the test.
Mark L. Evans: --That's correct.
Antonin Scalia: So it's sort of hard to get upset about potentiality as a basis for standing, if you are going to apply that kind of a test.
Mark L. Evans: Well, I think, Justice Scalia, there is, although I know some members of the Court don't necessarily agree, there is good reason for viewing the test as a hypothetical test. The alternatives to an internal consistency analysis are only two, as we see them. One is to accept the reality of double taxation, which would contradict the one bedrock principle, I think, of the Commerce Clause. A second alternative would be to require individualized, case-by-case showings of actual double taxation in particular instances.
William H. Rehnquist: Which would suffice the Court for 180 years.
Mark L. Evans: Well, I... Justice, Mr. Chief Justice, I'm not sure that's correct. Because, as I indicate, I think that this kind of analysis, which focuses on risks and focuses on the possibility of other States doing something similar to what the challenge statute does, has been with the Court for nearly a century, so far as we can tell. It may have gone back further. We couldn't find anything further back.
William H. Rehnquist: Well, I... you certainly can cite language in the Pullman Palace-Car, but to say that was the precise rationale of the decision was the... an internal consistency... I think pushes the language a little far.
Mark L. Evans: We don't say it was the whole rationale of the case, Mr. Chief Justice. We do think that it was an instance in which the Court found it useful to look at what other States might... what would happen if other States used the same taxing mechanism. Let me just run through why I think it would not be a good idea to open up to actual double taxation showings in every case. First of all, every... every case would produce a lawsuit. There would be no mechanism by which these things would be resolved other than by litigation. Second, you would have the anomaly of State A, say Florida, adjudicating what Michigan in fact is taxing. There may be an argument, for example, in a lawsuit brought by Ford that it is fact being taxed by Michigan on the basis of domicile, to which a State counsel might respond well, we don't really see it that way. Do you have any authority for that being the way that the State court reads it? Well, we don't have any definitive authority, but we paid our bill. Well, that is not enough, we don't see it that way. So the first issue in the State court is going to be whether Michigan in fact taxes domicile. And if it does, the second argument for the State's lawyer is, well, it's not valid. And so you've got the bizarre situation of the State of Florida having to adjudicate both the meaning and the validity of a Michigan statute, taxing statute. Then you have the problem of, what if you prove it? Which State... which State's tax gets struck down? Do you pick the one that you happen to sue? Does that one go? Do you have to look to see whether there is an internal consistency at that point? What if they are both internally consistent? You may wind up with... having... allowing taxpayers to pick which statute... which statute must yield.
Byron R. White: It sounds like a good argument against the internal consistency rule.
Mark L. Evans: No, it's a good argument in favor of the internal consistency test, Justice White, because none of this becomes necessary. As I say, if you don't have a test that assumes that other States can do what this State is doing, which in fact will happen, as the Court knows from its long history in this area. Once it blesses a tax, other States follow it because it has been, it has been constitutionally blessed by the Court. And so that, what you wind up with is either what I am describing, if you don't have an internal consistency kind of test, or you wind up with a... with having to just suffer actual double taxation. The one other consequence of requiring case by case showings is that you can wind up with a... with a patchwork. You've got different taxpayers being able to establish that the tax is unconstitutional as to them, because of the States they happen to be operating in at a given time and the tax policies of that State at that moment, and other taxpayers who are identically situated, except that their State may have a slightly different policy at that moment, have a different constitutional rule. The result of all this would be, I think, a litigation nightmare, and it's a good reason why the Court, I think, has not followed that approach.
Antonin Scalia: Well, it wasn't until the last decade that we somehow found it necessary to explicitly adopt it in order to prevent all of these horribles.
Mark L. Evans: Well, I think it was--
Antonin Scalia: Somehow we stumbled along for 190 years without... without this great disaster.
Mark L. Evans: --Well, I think what the Court stumbled along with was an internal consistency analysis without the label on it, because the cases repeatedly reflect the Court assuming, for the sake of consideration of a tax, that other States might, in fact probably will, adopt the same tax if it's approved.
Antonin Scalia: You cited a few cases in which we had language that could be interpreted to be the internal consistencies test, but failed to cite dozens of cases in which we make no mention of it, where it would have been relevant to an analysis of the decision if... if indeed we thought it to be the law.
Mark L. Evans: Well, there are very... Justice Scalia--
Antonin Scalia: One swallow doesn't make a spring. It's that kind of--
Mark L. Evans: --Well, that may be right, but there... there are no cases that the State has cited that took a contrary position. We have not seen any case in which the Court, with one exception, in which the Court refused to examine a State statute on its own merits on the assumption that it might well be replicated everywhere. And that one exception was in the General Motors case which was overruled in effect by Tyler Pipe. And I think that case no longer stands. I think that was an exception rather than the rule.
John Paul Stevens: --Mr. Evans, can we go back to the Armco case? You responded to me before by saying this is really just like Armco, but in Armco the taxpayer was paying a wholesale tax, the Ohio company, that its West Virginia manufacturing competitors did not have to pay.
Mark L. Evans: That is right.
John Paul Stevens: That's not like this.
Mark L. Evans: We think it is, Justice Stevens. Now, the argument--
John Paul Stevens: What of... which one of your competitors does not have to pay a tax you have to pay?
Mark L. Evans: --Any one of our local Florida competitors does not pay our tax. It pays the domiciliary tax, just as... just as the West Virginia manufacturer--
John Paul Stevens: But it... doesn't it pay the... doesn't it pay a tax at the same rate on all its commercial paper the way you do? It's... may be given a different label, but isn't it paying... I don't... I don't understand how it can possibly be, have an advantage over you, unless you look at the possibility of a tax against you in Michigan.
Mark L. Evans: --Well, insofar as we're dealing with intangibles that are... that have a Florida business situs, it looks like they are paying the same thing. It looked in Armco as if the manufacturer paid more than his out-of-state competitor, and in fact that was Chief Justice Rehnquist's point in his dissent in that case.
John Paul Stevens: Right.
Mark L. Evans: That in fact they are paying the same thing, on the same kind of basis. It was a sales price kind of tax. And in fact the local manufacturer was paying at a higher rate. But the--
John Paul Stevens: One was paying on manufacture, and the other was paying on wholesale receipts. But here they are both paying on the value of the intangible paper.
Mark L. Evans: --Well, the--
John Paul Stevens: Which has a situs in Florida.
Mark L. Evans: --Well, but the question is whether domicile and business situs are the same thing. I mean, the fact is that--
John Paul Stevens: Well, but the tax... the intangibles being taxed are the same, aren't they? And from a competitive market standpoint--
Mark L. Evans: --Well, the difference is, and this may come back to your earlier point, the difference is that in looking at a competitive market in Florida, Ford, because it's an out-of-state domiciliary, carries baggage, which is that risk that it might be subjected to another... another tax during the life of that receivable--
John Paul Stevens: --Yeah.
Mark L. Evans: --sometime by another State. Which is something that the local competitor never has to face.
John Paul Stevens: But in the... but in this case your concern would be satisfied if there was an injunction by the district court in effect saying do not levy this tax or a comparable tax against domiciliaries to the extent they have out-of-state business. You see, the thing that differs, it seems to me that the problem you identify could completely solved without saving you a nickel... in short.
Mark L. Evans: That was true, I think, in Tyler Pipe, and it was also true in Armco. There was that, there is a risk--
John Paul Stevens: Well, I'm not sure.
Mark L. Evans: --that one of the choices that the Florida legislature could make in order to make its statute internally consistent is that it would still wind up taxing us the way it does now. But that is not the only choice it has. It might, for example, take away the exemption that we... that we think effectively operates in Florida, which gives Florida domiciliaries an exemption from the business situs portion of the tax. If it did that, then our competitors would pay, we think, equally on that... on that ground in Florida. Or it could wind up apportioning, which we think in some respects is the proper solution. Which... which is to say that if Florida's logic, the logic of its own tax, and we think, this is a point we think is very effectively made in our... in Florida's brief, that the underlying theory of the internal consistency test is that a State ought to be required to adhere to the logic of its own tax. Now, it has in its very basis an assumption that both domicile and business situs are contributing factors in the benefits and protections that a State can provide. What it does, however, is it... it doesn't operate in consistency with that, with that theory. To the extent it taxes all of a domicile, all intangibles owned by a domicile, its theory is the domicile is the entire contributing factor. At the same time it is taxing some other domiciles, some other... a person domiciled in another State, based on business situs, which contradicts the very theory of the domicile tax. So either it's... either it's domicile contributing everything, or they both contribute something. If they both contribute something, then the State ought not be allowed to tax business situs, on a business situs basis, in full. It ought to recognize that there is somebody else contributing to the value of that intangible. So we think that the statute is inherently defective for exactly the same reasons that the Armco statute was defective and that the Tyler Pipe statute was defective. The State argues... we think, Justice Stevens, that our situation is utterly indistinguishable from that in Armco. The fact that there were slightly different labels on the tax... that is, there is a manufacturing tax and a, and a wholesaling tax... made no difference, because the taxes were basically the same... operated the same way. And for the out-of-state manufacturer, he faced a wholesaling tax from which his local competitor was exempt. Now, the answer to that during the debate in the Court, presumably, and certainly the arguments in brief, was that well, that's true, but the manufacturer... the local manufacturer's paying a higher tax. And it's really the same tax for the goods sold in West Virginia, the local manufacturer is paying not only what the outsider is, but actually more. And the Court said that was not an answer to that, that in effect there was an internal inconsistency that required... that required or subjected the out-of-state manufacturers to risks of double taxation that the local manufacturer did not have. That problem could have been solved in some respects the same way that your question suggested earlier. That is West Virginia could have said we are going to abandon our local manufacturing tax and we're going to subject our local manufacturers to the same tax that the out-of-staters are subjected to, and the out-of-state manufacturer would have been left in the same position. Those are just options for solution. But the fact is that right now we are faced with a statute that leaves us exposed to risks that local companies are not exposed to, and that is, for reasons that we think are sound, incompatible with the... at least the recent Court's decisions on internal consistency. I'd like to reserve the balance of my time.
William H. Rehnquist: Very well, Mr. Evans. Mr. Farr, we'll hear now from you.
H. Bartow Farr, III: Mr. Chief Justice, and may it please the Court: Ford in this case has used the internal consistency test to make two challenges in its brief to Florida's intangible taxes, one based on the situs tax alone, and one to the situs tax combined with the domiciliary tax. Ford has not pressed the first argument here this morning, and we, I believe, have answered it fully in our brief by pointing out that there is no internal consistency problem resulting from the situs test itself. So I would like to move directly to the second point, which is the combination of the situs and the domiciliary tax, and set out, if I may, just briefly at the beginning, what our position is on that. Simply put, it is this. That the Court shouldn't use the internal consistency test to strike down a taxing scheme when the hypothetical tax is based on domicile, and so the taxes of only one other State are likely to be at issue, and when a relatively simply factual inquiry shows that the taxpayer in fact paid only one tax on its property, just like its local competitors. The situation typically in which the Court has used the internal consistency test, as the Court has noted in using it, have been cases where when one hypothesizes the use of the... of a particular tax, one might conceivably be looking to cumulative taxation by 49 other States on the same basis. That is simply not a situation that arises in the case of the tax based on domicile. In that kind of situation we know in advance that there is likely to be only one other State that is asserting taxing jurisdiction, and you do not have the same kind of impractical inquiry that you would have with manufacturing taxes and selling taxes, which could be levied for a particular taxpayer by a number of different States, when the basis of the hypothetical tax is, as it is in this case, simply domicile.
Byron R. White: Well, I think... I suppose you would argue then if Michigan had exactly the same scheme as Florida, that both... both States' tax laws would be valid?
H. Bartow Farr, III: Well, we would in fact make such an argument based on the Due Process Clause cases. But there, what I am saying here--
Byron R. White: Because you think the domiciliary basis for taxation is perfectly valid.
H. Bartow Farr, III: --That there is an additional basis for taxation provided by domicile, as the Court has recognized, that goes beyond the usual situs basis. But that is not the necessary part of the argument I'm making here. What I'm saying here is that it is a very simple question to look and see whether in fact Michigan had this tax, and very easy to see that it did not. So in fact, when we move away from the hypothetical and move to actual practical considerations, it is absolutely clear that Ford paid only one tax on its Florida intangibles.
John Paul Stevens: But, Mr. Farr, why can't we do that with companies, like in Armco, that have only one manufacturing plant?
H. Bartow Farr, III: What I am looking at, I think, Justice Stevens, is the general run of cases. I think there would be exceptions in any particular setting of the internal consistency test.
John Paul Stevens: Yeah, but most taxpayers don't have plants in 49 States, and if you look at the general run of Florida out-of-state companies, presumably there is one from each of the 49 other States. So that to really survey the tax you would have to look at all the home States, wouldn't you?
H. Bartow Farr, III: But you can be assured--
John Paul Stevens: You can do it for each one, one at a time.
H. Bartow Farr, III: --Right. When you are looking at any, a challenge by any particular taxpayer. And I think, though, that goes to the very heart of what we're talking about. It may be possible for using the internal consistency test to essentially litigate the double taxation or discrimination against another taxpayer from another State, which is what Ford is trying to do. What we're saying is that where you don't have the kind of difficult factual inquiry that is likely to arise in other settings, there is no reason to move past Ford's particular situation, which shows that it did not pay a domiciliary tax, and thus paid a single tax only.
John Paul Stevens: Is it perfectly clear that the domiciliary State would be Michigan and not Delaware?
H. Bartow Farr, III: There has been no argument about it in this particular case, Your Honor, and I don't think it would make any difference. Delaware has not--
John Paul Stevens: Except it makes it two you have to look at instead of one.
H. Bartow Farr, III: --It might in a possible case.
John Paul Stevens: Yeah.
H. Bartow Farr, III: I mean there is, frankly, I think there's a question after Wheeling Steel v. Fox whether a domiciliary State which bases its claim to domicile solely on incorporation would in fact be able to tax. So I doubt that would arise, but that is at least a possible consideration.
Anthony M. Kennedy: Under your view, Mr. Farr, if Michigan had a tax and Ford could show double taxation in this case, and if the Court, when it went on to say that this was a violation of the Commerce Clause, would the tax then be invalid just as Ford, so that companies that came from States that did not have the domiciliary tax would still have to pay the tax? Or is the tax struck down in its face? Or... I don't know how it would, how your theory would work.
H. Bartow Farr, III: The suggestion I am making, I believe, Justice Kennedy, is that in this kind of situation for this type of claim, that really the tax should be looked at as applied to a particular taxpayer. So that a statute that has essentially what might be argued to be a logical inconsistency but causes no harm to a particular taxpayer should not be struck down with regard to that taxpayer.
Anthony M. Kennedy: Do we have examples in our jurisprudence where this approach has been followed?
H. Bartow Farr, III: Well, there are certainly examples where the Court has said, for example in Northwestern States Cement, which is 358 U.S., the Court says we are not going to look at a hypothetical claim. There is no actual double taxation in this case, therefore we will no go on and address the question of whether there is a hypothetical problem with the statute itself. It seems to me that is a perfectly sound basis where the inquiry as to the particular taxpayer can be made relatively straightforwardly. And I think this is an obvious example of that kind of case. Taking for a moment the inquiry that I am proposing, which, as I say, departs somewhat from the idea of using hypothetical taxing burdens and looking at actual burdens, what... what do we see in this case? As I have said, we see that Ford has not paid a domiciliary tax to Michigan, and indeed hasn't paid one to Delaware either, should that be the possible alternative. When you look at what Ford really puts most of its emphasis on, you turn to the question of what are the risks of double taxation. And there concededly is language in the Court's opinion that talk about risk as part of Commerce Clause analysis. But I would like to suggest that it's worth taking a hard look in a case like this at what the risks really are, because risks are very easy to exaggerate. What do we know about the risk that Ford faced in Michigan, its domicile State, in 1980, 1981, and 1982, which are the years, the taxing years that are in question here? The first thing we know about them is that in fact the risk of a domiciliary tax didn't materialize. Michigan did not impose the tax during those years in question. Second, and more importantly, we know that the risk, at best, because of the nature of Ford's argument, is simply a marginal risk. Ford has based its argument here solely on the internal consistency clause. Yet Ford concedes, as it has to, that if in those years Michigan had had a domiciliary tax and Ford... excuse me, and Florida had had a situs tax, so long as Florida didn't itself have a domiciliary tax, the two statutes together would meet the internal consistency test. So what that leaves Ford with when it talks about risks is essentially an incremental risk, the idea that Michigan wouldn't tax its domiciliary corporations on its own. It would only do so essentially in sort of a copy cat fashion, because Florida has done so. And even there, I might suggest, that if Michigan were to consider a domiciliary tax, what you don't have in this case is what you have in so many Commerce Clause cases, the difficulty of an out-of-state corporation facing taxing decisions by a State in which it's not located. We are talking about the possibility of a tax imposed by Ford's own domicile, where Ford presumably has substantial political power.
Antonin Scalia: Mr. Farr, the test you propose really ends up, doesn't it, to create all sorts of odd incentives for companies to do business in some States or not? For example, if Michigan should impose a domiciliary tax, it would then be cost free, in effect, since there would be the kind of conflict you acknowledge would have to... would have to disallow... would it be the Florida law that is disallowed in the event of that conflict, or both of them, by the way?
H. Bartow Farr, III: Your Honor, I hate to interrupt your question, but I don't concede that one or the other would have to be disallowed. I would suggest that under the due process cases they both could stand compatibly. I am saying the Court need not reach that issue in this case, because there in fact are not two taxes being levied.
Antonin Scalia: Oh, you're not even acknowledging that when there are two taxes levied it would be invalid? I thought you said that we would do it on a case-by-case basis, and that is you showed an actual conflict--
H. Bartow Farr, III: Then you would have to decide the issue as to whether both taxes could legitimately be sustained.
Antonin Scalia: --Oh, I see.
H. Bartow Farr, III: That, that is the approach the Court took in cases like Curry v. McCanless.
Antonin Scalia: Oh, I see. If Florida and Michigan had exactly the same scheme, you would argue that both are valid?
H. Bartow Farr, III: I would argue that both are valid.
Antonin Scalia: That's what I thought you said a while ago.
H. Bartow Farr, III: That's correct, Justice White. Following the due process cases from the late 1930's and 1940's, I would argue that because of the special nature of a domiciliary corporation and the--
Antonin Scalia: I see.
H. Bartow Farr, III: --benefits that the Court has recognized the State gives, that it could indeed have extra taxing power. But I want to make clear the point I am making here is I do not believe it makes sense to decide that issue in a case where no domiciliary tax on Ford has been imposed. And that is, I think, the point that Ford is raising.
Byron R. White: Well, I suppose that if Michigan had a tax like Florida's on domiciliaries, it would certainly be... it certainly would put a... it certainly would deter, I suppose, a domiciliary in Michigan from doing business in Florida or any other State that had a tax like that.
H. Bartow Farr, III: In the sense that it would then be subject to double taxation.
Byron R. White: Why, yes, yes. And if you are going to pay, if you would have to pay two taxes on your intangibles if you went to Florida, you'd stay out of Florida.
H. Bartow Farr, III: Your Honor, I think that is a possibility. I would say that the issues of double taxation, precisely the point that you are making though, is what the Court spent really a decade and a half wrestling with from about 1930 until the early 1940's, exactly trying to draw the kinds of distinctions that you are making--
Byron R. White: And never got a fall.
H. Bartow Farr, III: --I'm sorry?
Byron R. White: And never pinned. Never, never got... and it never pinned anybody.
H. Bartow Farr, III: Well, it came closer to pinning at the end, I think, when it made its second reversal, if I can continue the wrestling metaphor, to say that in fact there was a legitimacy to double taxation of intangibles by both the domiciliary State and the situs State.
John Paul Stevens: Mr. Farr, can I suggest a problem with your approach? Supposing this challenge had been brought not by Ford challenging the situs aspect of the tax, but by a Florida domiciliary, making precisely the same argument? And they would say we are subject to a situs... potential situs tax in 49 other States because we are a nationwide credit company. Would you say they didn't... would you make the same argument to them?
H. Bartow Farr, III: No, I would not make the same argument. As I said, I think even... if the basis of the hypothetical tax is situs, that, it seems to me, is a basis that maybe is sort of--
John Paul Stevens: I see. It's the fact that the hypothetical tax is the burden on the domiciliary that is what you--
H. Bartow Farr, III: --That's correct. I mean, as I... to me, and perhaps this is a misstatement, but as I see the internal consistency test, it essentially carves out an exception to general constitutional principles of how you approach an attack under... on constitutional ground State statutes. And it seems to me where there are practical reasons for essentially allowing the tax... the to be based on hypothetical grounds, that maybe the usual practice should yield. But I don't see it in the case where the hypothetical tax is the domicile. I would like to just say one more thing about the subject of risk, again because I think Ford has given it considerable emphasis. The... you know, we certainly don't disagree that there was this marginal risk that I mentioned before, this incremental risk that Ford might be subject to tax by Michigan. But when we are talking about that as a basis for challenging the Florida statute, it does seem appropriate to remember that the Florida companies, the competitors that Ford keeps talking about, not only pay tax on exactly the same intangibles in Florida as did Ford, but in fact were subject to a real tax, not a hypothetical tax, on their intangibles in 49 other States. And one question I suppose I would raise here is, for all their talk about multiple burdens and discrimination and lack of allocation, is there any reasonable likelihood that in 1980, 1981, or 1982 Ford would have changed places with the Florida domiciliary corporations insofar as taxes on intangibles were concerned? That is usually the question that comes up in any Commerce Clause case, or at least something that underlies it, when you say that our competitors are being advantaged here. But we submit that there is no way that Ford would have said we would rather be treated as a Florida domiciliary, in fact, and we were treated as we were.
John Paul Stevens: --Mr. Farr, are there any Florida cases pending in which a Florida domiciliary has challenged this tax?
H. Bartow Farr, III: Not to my knowledge, Justice Stevens. I would like to make one final point on the question of the particular type of inquiry here. Ford again concedes, as I think it must, that so long as Florida took action that met internal consistency, it would not be necessarily entitled to a refund. In Tyler Pipe this Court pointed out that any problem with internal consistency in that case could be solved for out-of-state manufacturers by providing a credit against the out-of-state tax on the tax levied by the State of Washington in that case. Assuming that Florida could do the same thing here, and we don't see any reason why they couldn't simply to achieve the consistency that Florida is talking about, ultimately that credit would do Ford no good whatsoever. It has nothing in fact to credit from its domiciliary State. So to the extent that there is a superficial difference because a Florida corporation arguably gets a credit against one tax and only has to pay once, even if Florida applied exactly the same rule to Ford, there would be no difference whatsoever in the judgment that is in front of the Court at this point, the judgment that says they owe the taxes for 1980, 1981, and 1982. If the Court has nothing further, thank you.
William H. Rehnquist: Very well, Mr. Farr. Mr. Evans, do you have rebuttal?
Mark L. Evans: Let me just start where Mr. Farr left off on credits. This is an issue that was discussed as well in Tyler Pipe, in which the Court specifically said that credits might be a solution. And in fact the... the complaining parties in Tyler Pipe, if a credit had been provided, would have likewise, at least prospectively, been arguably no better off than they were before they came to Court. On the question of refunds, we have not conceded anything. That's not an issue that's here at this point. It's a matter for remedy that the Court has spelled out, and the contours of which from a constitutional standpoint the Court has spelled out recently in McKesson. We are not in a refund posture. We're here under an assessment. We have not paid the tax, we have posted a bond for it. We have paid a portion of the tax, and we are not suing for refund of that. So we are not even in a refund posture. Insofar as a retroactive or retrospective remedy, we think it's something that ought to be dealt with by the Florida courts, and in fact the Florida courts have at least some cases suggesting that a taxpayer is not required to pay a tax under a statute declared unconstitutional.
Anthony M. Kennedy: Counsel, is it possible to speculate that these intangibles are included in some overall tax schemes of other States, general property tax?
Mark L. Evans: Well, I think there--
Anthony M. Kennedy: And so that it would follow from that that Michigan has foregone... has foregone to levy on these in lieu of its tax?
Mark L. Evans: --Well, I think to a certain extent that may be, that may be right. And it, it reminds me, Justice Kennedy, of a point that I believe was in Justice Stevens' concurring opinion in the Goldberg case, which is that the fact that one State cedes or declines to adopt a tax doesn't mean that somebody else can take that State's share. I think that in... there are about half of the States that, at least as we have identified in a rough survey, that have some form of intangible taxation. About five or six of them, or so, look pretty much like Florida's. They have a... looks on the face of it at least to be an internal inconsistency, taxing both on the basis of domicile and on the basis of... or alternatively on the basis of business situs. A couple of them choose one or the other, and then there are a large category that is just not decipherable in the face of the statute what they do. But clearly, intangible values are taxed elsewhere, and it may be that Michigan chooses to require its domiciliaries to pay their share of State and local services that are provided within the State to domiciliaries in some other form, rather than an intangible property tax. Clearly this is not a free ride for Ford Motor Credit Company, and it ought not to be a... an opening, in effect, in the line for Florida. I... now... Mr. Farr seems to have said something that was also in the brief that I just want to address briefly. The notion that the Court's decisions in the 1940's, late 1930's and 1940's, on due process grounds bear on the issue here, we think is really quite far fetched. Those cases were due process cases where the issue was one issue only, namely did a nondomiciliary State have the jurisdiction to tax property owned by... that was in the State but that was not owned by one of its own domiciliaries, and the answer to that question was yes. There was never any consideration in those cases about multiple taxation, because the issue was a due process issue, and not an interstate... impeding of interstate commerce issue. The fact is that the one time when the author of the key opinion, Chief Justice Stone, addressed the issue, he specifically said, and we quoted this in our reply brief, which I am not finding right now, this was in his dissenting opinion in Northwest Airlines at 332 U.S. He said, in response really to an argument that Mr. Farr has made, that yes, domicile can be important and it can give a basis for State taxation of intangibles that might otherwise not be available in the case of tangible property. But then he goes on to say that the taxation of intangibles of interstate companies is subject to the rule of apportionment, wherever the tax--
Anthony M. Kennedy: Where is this?
Mark L. Evans: --I'm--
Anthony M. Kennedy: Where is this from?
Mark L. Evans: --I'm sorry. This is on page 15 of our reply brief. He is saying that the taxation of intangibles, when it's... when they are owned by interstate companies, is subject to the rule of apportionment, wherever the tax without it would subject the commerce to the burden of multiple State taxation. And to suggest that double taxation is permissible on some domiciliary hearing when you are talking about interstate commerce strikes me as quite... quite bizarre in the current--
John Paul Stevens: Let me, let me ask you, supposing we're talking about tangibles instead of intangibles--
Mark L. Evans: --Yes.
John Paul Stevens: --talking about real estate. Could a Florida resident be taxed on real estate owned in Illinois or Michigan?
Mark L. Evans: No.
John Paul Stevens: He could not?
Mark L. Evans: Oh... by Florida.
John Paul Stevens: By Florida.
Mark L. Evans: No. It could not.
John Paul Stevens: It could not be taxed on its out-of-state wealth.
Mark L. Evans: That would be... I mean, I think that's pretty settled in the Court's decisions. In the area of real property you can only tax what is within your borders.
William H. Rehnquist: Mr. Evans, several of us don't seem to have the reply brief here on the bench. What was the case you were reading from?
Mark L. Evans: This was Chief Justice Stone's dissenting opinion in Northwest Airlines, which is in 332 U.S., and the quote I was reading to you was at page 318. It was in response to an argument that, very much like Mr. Farr's, that multiple taxation is all right when you are dealing with taxation by domicile States, and we're talking about... in that case we're talking about airlines and tangible property. But there was reference made to intangibles in his response.
William H. Rehnquist: This was 332 U.S.?
Mark L. Evans: 332 U.S., and this was at page--
William H. Rehnquist: Chief Justice Stone?
Mark L. Evans: --Chief Justice Stone.
William H. Rehnquist: I thought he was dead by then.
Mark L. Evans: Well, I think the citation is--
William H. Rehnquist: Okay... we can check it out.
Mark L. Evans: --I will double check it. My mistake. 323. We missed... cite checkers missed it. In response to the argument he also cited a number of other cases dealing with, and these are also cited at page 15 of the reply brief, a number of other cases that did deal with the possible problem of multiple taxation of intangible property, going back... back again into the 19th century. Now, Mr. Farr said that the risk that we face would... we would still face even if, even if the State abandoned its domicile tax, as he suggested, and left in place simply a business situs tax applicable to everybody. And that's true. We would face a risk. It would be a slightly different risk, and while it would look the same, it would offer different opportunities. At least we would have an opportunity, or a company with a domicile outside the State would have an opportunity to change domiciles if its own domicile State adopted a domiciliary tax. In that event it would pay no tax in Florida, because Florida doesn't have a domicile tax, and it would pay no tax in the State it used to be domiciled in because it has no business situs tax. Furthermore, firms generally, although individual firms might face risks and might be hurt, firms generally, on balance, operating in interstate commerce would fare about as well as those operating in intrastate commerce. Because, as I say, while some might ultimately have to pay two taxes, others will get away with paying none. And finally, while there... it is true that there is a limit beyond which the Court can't go, consistent with principles of federalism, we cannot tell Florida that it cannot adopt a... an internally consistent tax on the basis of business situs or domicile simply because Michigan chooses to adopt a different internally consistent tax on a different basis. That's the irreducible minimum required by principles of federalism. But we can tell Florida that it cannot adopt an internally inconsistent statute that enhances the risks beyond those that are the minimum necessary to preserve federalist principles. One final comment. We have been... the Court has been debating questions of internal consistency now actively for almost a decade. Almost every argument that has been presented in the briefs here has been thoroughly debated in the prior decisions of the Court. There is no distinction, no distinction that we can see in principle between applying the test here and applying the test in the cases that have already been decided. To whatever extent there is any difference, we think it's an easier case here, because we are dealing with a property tax, where assets have one value, much like income does. But in any event, it's time for some stability in the law. It's an issue that is constantly in play. And the Court has now decided five cases since 1983 in which it has indicated that internal consistency is a special test to screen for defective State taxes. It has been a hotly debated issue, but it is now, I think, time to settle it and leave it in place. States ought to begin to deal with this test, which is not difficult for them to apply, is not onerous with respect to their options, and which ought to be dealt with by the States that way rather than as another opportunity for litigating Commerce Clause issues. Thank you.
William H. Rehnquist: Thank you, Mr. Evans. The case is submitted.


Earl Warren: Number 647, Louis Bostick, Petitioner, versus South Carolina et al. Mr. Perry.
Matthew J. Perry: Mr. Chief Justice, may it please the Court. This case is here on writ of certiorari to the Supreme Court of the State of South Carolina. Petitioner, Louis Bostick was convicted of murder during the February, 1962 term of the Court of General Sessions for Jasper County, South Carolina. The Supreme Court of South Carolina later affirmed that has conviction and sentence of death. Thereafter, petitioner filed in the Court of Common Pleas for Richmond County, South Carolina has petitioned for writ of habeas corpus, alleging that the grand jury which indicted him and the trial jury which convicted him were so conveying as to systematically exclude there from members of the Negro race of which race the petitioner is a member. The evidence presented on this question is perhaps somewhat brief but we think sustains the allegation that there is in fact discrimination shown by the record here that a prima facie case of discrimination has been set forth. That evidence is that for a period described variously by the witnesses ranging from eight to nine years, only one Negro in the memory of the various witnesses had been called to serve on the grand jury of that county. The evidence also is that in 1962 at which time this indictment was returned, there were 947 qualified male electors in Jasper County, who were white, and that there 246 qualified Negro male electors. In South Carolina, jury lists are made up from the list of qualified male electors.
Byron R. White: How are they made up?
Matthew J. Perry: They're selected pursuant to the South Carolina constitutional provision that qualified male electors that is to say males over the age of 21 and less than the age of 65.
Byron R. White: It doesn't contain how it directly chose physically, how they select the names from the registered voters list? It is the voters list?
Matthew J. Perry: That is correct, sir.
Byron R. White: How do they go about that? Do you know?
Matthew J. Perry: Well, the testimony of the clerk of court Mr. Sensenbach set forth at various places in the record and particularly on pages 66, etcetera --
Byron R. White: Now, it doesn't -- it -- they never get around to say how exactly how they do it?
Matthew J. Perry: Oh, yes. Well, may I refer you Mr. Justice White then to the opinion of the Supreme Court of South Carolina which I believe sets forth more succinctly the manner in which the juries are convened in that state, set forth that page 118.
Byron R. White: But now they have a list of registered voters, what mechanical process -- what process do they go through to actually select the -- a portion of the male electors from that registered voters list?
Matthew J. Perry: Once a year, that is to say, in the month of December of each year, the jury commission which is comprised of the clerk of court, the treasurer and the auditor of each county convene themselves for the purpose of selecting the grand jury, the grand jury for the ensuing year, and prior to the beginning of each term of Court during the course of the year. The jury commission likewise convenes for the purpose of selecting the various venires. During that December meeting of the jury commission, they take from the registration roles of each county a certain --
Byron R. White: They actually have roles before them?
Matthew J. Perry: That is correct.
Byron R. White: With the names on it and their addresses?
Matthew J. Perry: Yes, sir.
Byron R. White: And the racial designation?
Matthew J. Perry: And the racial designation.
Byron R. White: So, they know -- they know the race of those of the people whom they collect from the registered voters list?
Matthew J. Perry: They know that because race is clearly designated on the registration duplicates.
Byron R. White: If one of this is not by lot of them -- of the -- of that list, is it?
Matthew J. Perry: It is not by lot --
Byron R. White: Or it is by any -- every tenth name or every second name or?
Matthew J. Perry: No, sir.
Byron R. White: It's not a random choice of the list?
Matthew J. Perry: Well, it is random but the jury commission is required by the law to select two-thirds of the qualified male electors of each county.
Byron R. White: Alright, to put it -- to put in the jury box.
Matthew J. Perry: To put in the jury box. And --
Byron R. White: So, how they go about throwing out the one-third?
Matthew J. Perry: This is done through various actions on the part of the jury commission based upon such things as a would-be jurors profession such things as the feeling that he is possibly not qualified by reason of his failure to possess the necessary good character requirement.
Byron R. White: How about race?
Matthew J. Perry: We submit that the record here indicates an opportunity to discriminate on race as was found by this Court in Avery versus Georgia from that factual situation.
Byron R. White: Was there -- is there any testimony to show actually what proportion of Negroes and whites actually got into the jury box?
Matthew J. Perry: Yes, sir. The testimony of --
Byron R. White: When you select the two-thirds out of -- of the jury off of the registered voters list, once that two-third goes into the jury box that, they could be proportioned there in the jury box?
Matthew J. Perry: Well, the clerk of court testified that he and the other jury commissioners made a conscious effort to maintain a certain proportion at representation.
Byron R. White: Do you accept that?
Matthew J. Perry: Well, of course, we --
Byron R. White: And I know you say that even if that so, that's invalid selection but do you accept the fact they did put into proportion?
Matthew J. Perry: Well, of course, the only evidence on that point is the testimony of the clerk of the court.
Byron R. White: But you don't accept or do you accept or?
Matthew J. Perry: Well, of course, we --
Byron R. White: What do you care with that?
Matthew J. Perry: I'm not at all sure that makes a great deal of difference in the context of the record before the Court at this time because we believe that this record establishes a prima facie case of discrimination in the selection of the jury based upon the fact, that over a long period of time, only one Negro had been called to serve upon the grand jury of that county. And based upon the various population ratios in 1960 for example, that is shown by the 1960 Census over 2,689 adult-white persons in Jasper County, South Carolina and that there were 3,333 Negro citizens in that county. And that of the qualified male electors from which group members of the jury are selected that Negroes comprise according to computation set forth in the state's brief approximately 21% of the total persons in the jury box.
Abe Fortas: It may -- may not correctly coalesce. Are you telling us that only one Negro is selected for the grand jury at any time in the -- his list so far as this record shows?
Matthew J. Perry: We think the record supports that and we refer the Court to pages 66 and commencing at that point forward, to the testimony of clerk of court, Mr. Sensenbach, who testified. First of all, that there was one Negro on the grand jury which invaded petitioner during the February 1962 term of the Court of General Sessions for that county. Now, his testimony --
Abe Fortas: Yes, I'm -- I remember that but he was asking about the February term of Court of the grand juries over a period of time. But then as I understand it there are six -- that there are six terms of the Court each year?
Matthew J. Perry: That is correct. But we have only one grand jury.
Abe Fortas: Is there anything -- that -- oh, you have only one grand jury?
Matthew J. Perry: For the entire year.
Abe Fortas: I see. I didn't understand that.
Matthew J. Perry: But approximately six terms of the Court convened during the course of the year. Now, this of course includes the civil and criminal term. I believe that the criminal terms in that particular county would probably not be more than three terms. They -- a winter term, a summer term, and a fall term.
Abe Fortas: Well, my -- my notes which may be incorrect to the fact that his testimony that then the 1959 term, there was one Negro in the grand jury panel, 1960 term possibly one Negro, and 1962 term which was when petitioner was tried the one Negro in the grand jury trial, and similarly in 1963 one Negro in the grand jury panel. And here, you're telling me now that the record shows the contrary?
Matthew J. Perry: We think the record shows contrary to that Mr. Justice Fortas. We refer the Court to -- with respect to the 1961 term of the Court, to the bottom of page 66 and the top of page 67, during which time the clerk of court testified that he could not identify any Negro among the list of grand jurors. We refer the Court to about the middle of page 67, where the clerk of court testified that he could not identify any Negro on the grand jury for 1960. Go to the bottom of page 67, where the -- with respect to the 1959 grand jury, the clerk of court thought he recognized one of the names of -- one of the jurors as a Negro but stated that this could have been a white person since in some instances in that county some Negroes have the same names of which some white persons has. So, he wasn't positive in his identification.
Abe Fortas: I didn't read that testimony that way but I may be wrong. But I -- I understand your position, but I want the entire point.
Matthew J. Perry: And if you will go back to page 68 of the top of the page with respect to 1958, the clerk of court does not recognize any Negro included on the grand jury during that term. Now, --
William J. Brennan, Jr.: Well, Mr. Perry in the middle of 68, is the question whether you've seen the grand jury sitting since 1958 with more than one Negro sitting on that jury or more than five is that your -- I don't think more than five. I don't think in a grand jury there's been more than one or two at any one term that I can recall. Are we to take that to say that since ‘58 in each term there has been at least one or maybe two each term?
Matthew J. Perry: No, sir.
William J. Brennan, Jr.: I see.
Matthew J. Perry: We submit that if you will refer fully to the testimony of the clerk of court on this point, it was perhaps a not too accurate use of the semantics involved on the part of the interrogator and the witness himself. In giving the answer to that question, we do not think reflected what actually is seen from a whole reading of the record here.
William J. Brennan, Jr.: Well, I gather your position is, are we dealing now since 1958 this record covered only since 1958, isn't it?
Matthew J. Perry: Well, I think that if you will look at the testimony of another witness who testified that he have visited --
William J. Brennan, Jr.: Well, except -- I wonder if you could tell me sir, are we dealing only with the situation since 1958 or does this record involved Negroes on the grand juries prior to 1958?
Matthew J. Perry: It involves Negroes on the grand juries prior to 1958.
William J. Brennan, Jr.: Yes. And is it -- it's your position I gather that prior and since 1958 the whole period there only been one in all that time, is that it?
Matthew J. Perry: This is what we think is reflected --
William J. Brennan, Jr.: But what -- and one -- some one of those terms which term, do you --
Matthew J. Perry: The February 1962 term at which time this petitioner was indicted and of course presumably throughout the entire year of 1962.
William J. Brennan, Jr.: At that time, there was one and that's the only time.
Matthew J. Perry: That is the only time.
William J. Brennan, Jr.: Up until then that's there never been a Negro in the grand jury, is that it?
Matthew J. Perry: That is correct. The record also substantiates the statement that in 1954 in another case, a South Carolina circuit judge questioned indictment upon the ground of discrimination in the composition of the grand juries of that county. And the clerk of court testified that the jury commission had done nothing since that time to change the manner in which they made up their jury box.
William J. Brennan, Jr.: May I ask you this Mr. Perry, if we would have think that this record justified a conclusion that at least one on the grand jury for each year at least since 1958 as what the evidence showed, would that change your position?
Matthew J. Perry: I don't believe so, Mr. Justice Brennan. I think that this Court's decision and Hugh Banks and then in O'Connell would still be applicable. Thank you. We think, therefore, that there is a prima facie case here of discrimination and that the State of South Carolina has not met that prima facie case by any evidence which removes the prima facie showing which we have made.
Abe Fortas: Well, Mr. Perry, I'd appreciate it if you would to tell me again. This court you believe shows a systematic discrimination so far as this record is concerned. Now, as I understand it, the list of voters, the elector's list does separate the Negro and white, isn't it?
Matthew J. Perry: That is correct sir.
Abe Fortas: Now, tell me just what the record shows as this as to how that list of electors was used for the purpose of making up the contents of the jury box?
Matthew J. Perry: Well, except for reference to the opinion of the Supreme Court of South Carolina which sets forth the procedure in making up the jury lists in South Carolina and except for reference to the testimony of Mr. Sensenbach, the clerk of Court, the record is otherwise silent concerning the exact mechanics.
Abe Fortas: This what bothers me in this case because Mr. Sensenbach's testimony, are you saying that Mr. Sensenbach's testimony makes out the case of systematic discrimination take that alone now?
Matthew J. Perry: Yes, Mr. Justice Fortas. We do.
Abe Fortas: Why?
Matthew J. Perry: Because Mr. Sensenbach testified variously having reduced himself from any inference of any discriminatory purpose. He testified that notwithstanding this fact that there had been only one Negro call for the service on the grand jury.
Abe Fortas: That's what I wanted to get clear. What you're saying is that the fact that -- you're saying there was only one Negro who called for grand jury service. Now, let's assume that for the moment. Then you're saying from that fact regardless of the rest of Mr. Sensenbach's testimony, we should infer systematic grand jury exclusion?
Matthew J. Perry: Yes, sir.
Abe Fortas: Despite the fact that in this record, he has testified by at least the record can be read. I don't know whether I would read it this way. But it can be read as showing his testimony to contradict the -- any systematic exclusion.
Matthew J. Perry: That is correct. We do not believe, of course, that his protestations to the contrary removed the clear inference shown by this record. I call to your attention also the fact that Mr. Sensenbach testified that he knew immediately when he observed the name of the prospective juror, the race of that juror, that he also knew where they lived in the county. Now, we think of course, looking at the entire record on this point, the conclusion is apparent that the opportunity to discriminate was clear. We think, of course, certainly we didn't have tax records which were mocked different colors as well as the case in Avery versus Georgia but --
Byron R. White: I know but you had -- you had registered voters list which designated the --
Matthew J. Perry: We did have registered voter lists which designated the --
Byron R. White: What -- why in this -- what's the difference between this and Whitus?
Matthew J. Perry: Well, I merely -- I merely point out that in -- well, in Whitus of course you have a situation I think of course, analogous to -- in Avery versus Georgia where the State of Georgia pursued a system of requiring different colored tax slips based upon race. Now --
Byron R. White: Which is the source of jury name at all.
Matthew J. Perry: Yes.
Byron R. White: And here they have a registered voters list that separates Negroes and whites.
Matthew J. Perry: That is correct. And add to that the fact that the -- one of the jury commissioners immediately recognizes the name of a would-be juror as a Negro. Except in some few instances where Negroes and whites might have the same name.
Byron R. White: But you would argue -- you would argue any time that the jury commissioner is that familiar with the -- with the electorate that there's the invalidity if there is not enough Negroes on the jury?
Matthew J. Perry: I believe that looking at the entire record that when we add to the fact that only one Negro has been called for service on the grand jury and you add to that fact that the states has required the registrants to be identified by race, And add to that the further fact that the -- one of the jury commissioners can immediately identify the would-be juror by his race. All of those things taken together perhaps to paraphrase this Court's handling of confession matters, the totality of all of the circumstances, we think would lead to that conclusion.
Byron R. White: Well, if -- if on every jury panel there was the exact proportion of Negroes and whites proportionate to the numbers on the jury -- on the registered voters list, what would you say in there?
Matthew J. Perry: Well, of course, the Court has certainly observed that the Constitution not only prohibits exclusion but it prohibits discriminatory inclusion. I'm not at all sure that I would argue in favor of exact proportionate representation. I merely say that on the fact here, we think of course, that we have discrimination affirmatively shown and we respectfully submit that the record supports that position. I'd like to reserve the balance of our time for rebuttal.
Earl Warren: Very well.
Matthew J. Perry: Thank you sir.
Earl Warren: Mr. Brandon?
Everett N. Brandon: Mr. Chief Justice, may it please the Court. We think of course that the fair reading of Mr. Sensenbach's testimony will show that he testified that there was at least one Negro on the grand jury for the period prior to the time in which Bostick was tried.
William J. Brennan, Jr.: You mean each term Mr. Brandon?
Everett N. Brandon: Well, we think that he said that there was usually one on the grand jury and that while the record is not entirely explicit as to each year, we think that there is the fair inference to be withdrawn from that --
William J. Brennan, Jr.: Was that set in 1958 of the Court?
Everett N. Brandon: Well, since 1958 and of course the petitioner has said that it refers to the time prior but there was no direct examination of any witness as to any time prior to 1958 except that Mr. Sensenbach was asked about the quashing of an indictment in 1954 and he said that, it was quashed and that after they did about the same thing. Now, that is not to be read as if they discriminated by not putting Negroes on the jury. That is cleared up in my judgment by the later testimony of Ms. Farley. One of the jury commissioners and you must keep in mind that there are three jury commissioners. They are all elected officials and rather than confining ourselves to Mr. Sensenbach's testimony, we must read it all and Miss Farley said and she was quite clear about this that the crossing of the indictment did not refer to the exclusion of Negroes but referred to the manner in which a holdover grand juror had been selected for that year. Now, in South Carolina, we have a grand jury of 18 and six of those are held over selected by lot each year at the time the whole master jury box is prepared and while the record is not clear what she meant by that, it is clear that she in her own mind knew that it did not refer to discriminatory selection, exclusion or inclusion of Negroes. Now --
William J. Brennan, Jr.: Mr. Brandon, would you tell us something I don't know whether the records clearly shows that what actually happened when they take the electors' list, what would-be grand jury?
Everett N. Brandon: Alright sir. Our electors are in big books alphabetically. There is no separation of Negroes or whites. They go on there the way they're registered. If a white comes first, he's put on there. If a Negro is first, he comes on there.
Byron R. White: But that it's designated with which race they are?
Everett N. Brandon: No question by that. This designated by race. Yes, that is true.
Abe Fortas: But what is -- I miss that sir.
Everett N. Brandon: Sir?
Abe Fortas: What is the designate --
Everett N. Brandon: The registration books which are used to select jurors are -- designated race. Now, we submit to that --
Byron R. White: Well, you don't just take everyone that comes along?
Everett N. Brandon: No, sir. The statute requires that two out of three males be selected and this year, I think we're going to get women on there but with reference to this case, it requires two not less than two out of three males.
William J. Brennan, Jr.: Mr. Brandon, why is it this then the same problem we had in Whitus, if we decided on this?
Everett N. Brandon: For the simple reason sir, that if the statute is complied with and two-thirds of those eligible are placed in the jury box, those names are typed on a small piece of paper rolled up, inserted in a little pellet or a capsule thing, fastened, placed in a box, and mixed up. There's absolutely no opportunity --
Byron R. White: Well, there is in the selection of the names that go in?
Everett N. Brandon: There is in that and of course --
Byron R. White: Isn't that in Whitus?
Everett N. Brandon: No, sir. I don't think so because as I read Whitus, they used what the Court had condemned, a list condemned, and then also another list that had been supplied. The facts I guess that separated them by color and all. But, as I read Swain --
Byron R. White: I know but why is it -- why is it the segregated pack list in Whitus, the equivalent of the racially designated registered voters list in this case?
Everett N. Brandon: Well, as I understand Whitus, they were separate in list, that Negroes in one section of whites in another.
Byron R. White: But what -- but why should that make a difference as long as if you can held when they come to the designations in the race of the various people.
Everett N. Brandon: Well, it seems to me that in our system that to have the race designated on there, it would be helpful because you have an opportunity to at least get of somewhat of a proportion of representation into the jury box. Otherwise, if it were not designated, you wouldn't know whether you had any Negroes in there or not.
Byron R. White: Well, you would suggest to that person -- you wouldn't suggest that that purpose was achieved here, would you?
Everett N. Brandon: Well, there is a --
Byron R. White: If there was any proportion of representation of Negroes on the jury panel, wasn't it?
Everett N. Brandon: Insofar as the --
Byron R. White: What was the proportion of Negroes on the jury box? What was the proportion of the male Negro registered -- of the qualified male Negro out of the total, four to one? Is it four to one?
Everett N. Brandon: In about -- there were -- the testimony of the registration board, the clerk in the board was if there were 900 plus I think whites and 200 plus Negroes. It's about four to one, I think.
Byron R. White: Was it about 20%?
Everett N. Brandon: Yes.
Byron R. White: Now, with 20% on the panel of the court?
Everett N. Brandon: On panels? No, sir. And of course, there -- on the grand jurors we got 12 and as I interpret in this record there was usually one Negro and possibly --
Earl Warren: What is the language of the clerk that you rely on to that effect, in the record?
Everett N. Brandon: On Mr. Sensenbach's testimony on page 71, I think that -- I believe it was Mr. Justice Brennan read that if I'm not mistaken.
William J. Brennan, Jr.: I think I read something in 68.
Everett N. Brandon: Yes, he answered, “I don't think on a grand jury there has been more than one or two at any one term that I can recall.”
Earl Warren: Well, does that -- does that say that there are one or two on every one? He said, he doesn't remember anyone --
Everett N. Brandon: Well --
Earl Warren: -- whether it's more than one or two. Now specifically, before that, he said he didn't -- he didn't -- there were none that he could recognize on ‘58, ‘59, ‘60 or ‘61?
Everett N. Brandon: No, sir. I will call the Court's attention to page 67 and he refers to the list of February 1959 and he says, there's one colored here, I have ran onto already Tony Brown. And we have another one here who might be called.
Earl Warren: Who might be?
Everett N. Brandon: Yes.
Earl Warren: Yes. But I also -- there's one for ‘61 and he said, if there's a Negro on there. I don't recognize it. I have looked at them hardly. I know every man on here personally --
Everett N. Brandon: Yes, sir.
Earl Warren: -- and so forth that whether in relation with the other. We'll recess now and you can --
Everett N. Brandon: Yes, sir.
Earl Warren: -- answer that after.
Everett N. Brandon: Mr. Chief Justice, may it please the Court. At time we had adjourned, you had just asked a question. I wonder if I might ask you to repeat that or do you recall just what you said?
Earl Warren: My question was, I believe, I asked it two I think. But I think my question at that time was that, where do you find in the testimony of Mr. Sensenbach the précised language to the effect that there was one or two on every grand jury?
Everett N. Brandon: I do not believe that that précised language is in the record any more than the précised language that there was only one Negro on the grand jury at any time in the county. Now on 68, I referred to that where he said, “I don't think there's been more than one or two at any one term that I can recall.”
Earl Warren: Yes.
Everett N. Brandon: And then on 71, so that at most you have only been able to observe one Negro serving on the grand jury at one time, is that correct?
Earl Warren: His answer was?
Everett N. Brandon: In my recollection.
Earl Warren: Now, but the counsel pointed out on pages 66, 67, and 68 certain answer of citizen which says this witness said, first concerning was February 1961 grand jury, if there is a Negro on there I don't recognize it. I've looked at them hardly. I know every man on here personally and he said that he didn't. Then, again on 67, I'll show you the grand jury list and the petty list for the term 1960 of the general session's court. May I ask you to take your time, sir, and see whether or not you could identify any of these are Negroes? I don't recall the 1960 this particular jury but we have one man there by the name of Seblest. We have both white and colored by the same name. Now, whether this would be one of them, I could not tell. So they have no recollection of that. Then, please indulge me sir and let the grand jury list of February ‘59 and petty jury list. There is one colored here that I have run onto already come Tony Brown. We have another one here who might be colored but I think it is a white one and so on. Now, the fact to the answers, there never was more than or two when the question was asked it shouldn't follow, should it, that there was one or two in every panel?
Everett N. Brandon: Not necessarily, except with and the general context of his testimony, he said that there were -- that Negro served on the grand juries and Negro served on the petty juries and in varying numbers. It does --
Earl Warren: In what kind the numbers?
Everett N. Brandon: In varying numbers. I think you said in two -- I think you had one term there was six on the petty jury.
Hugo L. Black: A grand -- of grand jury?
Everett N. Brandon: Petty jury. Now, --
Hugo L. Black: But suppose -- suppose there was only one on each one, could that be any different to having none on each one but the percentage of white and colored people that lived in the county?
Everett N. Brandon: Well, Mr. Justice Black, the -- of course, the percentage of white and colored is fairly equal or maybe a little more colored. But prior to the last few years, the colored were not registered in the numbers that the whites were. For instance, back 10, 15 years ago, while they were allowed to register and if -- there's testimony in the record that they were kept from it. They just didn't do it, so they --
Hugo L. Black: Although, there may have been testimony in the record, they were not kept from it but the history shows they were kept from it?
Everett N. Brandon: Well, I think it does show that it has been done in some places but I don't know that history shows it was done in Jasper County, South Carolina.
Hugo L. Black: Why do they need separation of the colors in determining the elector?
Everett N. Brandon: I --
Hugo L. Black: What's the reason for this?
Everett N. Brandon: I don't know. I don't know, sir. I can't answer that question. As you know and as the Court knows, that's just been customary to do that.
Byron R. White: Well it's not --
Everett N. Brandon: -- and not only in that but in other --
Hugo L. Black: It's been utilized, hasn't it, as a means to keep them from serving on the jurors and voting.
Everett N. Brandon: I do not believe that has been used in Jasper County, South Carolina. No sir, not --
Hugo L. Black: You do not believe you can use that?
Everett N. Brandon: No, sir. I do not.
Hugo L. Black: But have you read the Whitus case?
Everett N. Brandon: Yes, sir.
Hugo L. Black: What about it?
Everett N. Brandon: Apparently was used that
Hugo L. Black: What?
Everett N. Brandon: It apparently was, yes, sir. I will have to agree with you.
William O. Douglas: Do you have a statute?
Everett N. Brandon: Sir?
William O. Douglas: You have a statute on the keeping of the records or perhaps to be designated by race?
Everett N. Brandon: On the registration records?
Tom C. Clark: Yes.
Everett N. Brandon: Yes, sir.
Tom C. Clark: That's the same as Whitus, they have the statue?
Everett N. Brandon: Well, of course as I reach Whitus and I said this before it's been up here a couple of times and if -- as I read it when they prepared the last jury list, they used the list that has bee prepared from a so-called tainted source, plus the designation from the tax list. Now --
Tom C. Clark: In the tax list, they were designating just figured that?
Everett N. Brandon: Want to see or colored?
Tom C. Clark: Yes.
Everett N. Brandon: Well, they're also separated into colored, different colored type in, if this part of the books and want it.
Tom C. Clark: Do they had a statute with each -- each person had the power return. And the return was put different colors according to race, the whites in one book and colored one at another book that the tax digest itself from which the jury was selected held a designation of the C. I saw a small c after the name which would -- it is shown, it was meant the colored.
Everett N. Brandon: Yes. Well --
Tom C. Clark: That was the same as yours as I understood you to say, and this from which the jury was selected did have a designation?
Everett N. Brandon: From which the box was filled.
Tom C. Clark: Yes.
Everett N. Brandon: I -- I will certainly concede that that designation puts the situation into such a -- into such a condition that it could be abused. That is -- that would be permissible.
Tom C. Clark: As we said in Whitus by all that jurors except anything now to see there after those designations, was it?
Everett N. Brandon: I read that.
Tom C. Clark: We said the potential of it, probability of it as it there and therefore we have struck them in?
Everett N. Brandon: Yes, sir. Well, I would call the Court's attention to this record that from the testimony of Mr. Sensenbach that they made an effort to put a proportion of the Negroes and proportion of the number of whites in the jury box itself in the little pellets from which it has not been questioned that there can be discrimination thereafter. Now, the other member of the jury commission, who testified -- who testified that they did not do it in proportion that -- but that they went down the list and made a bona fide effort to get two out of three without regard to the race, but that in her judgment there were substantial Negroes placed in the jury box. Now, I believe that the record would support or at least that would be a rebuttal to a prima facie indication of discrimination, if such is found in this case.
Hugo L. Black: You don't really -- why wouldn't more turn off in the box?
Everett N. Brandon: Sir?
Hugo L. Black: If there -- why wouldn't more turn off in the box to serve.
Everett N. Brandon: Well --
Hugo L. Black: If they had made that which is all required genuine, bona fide effort on the part of the state under the decision of this Court back by 1887.
Everett N. Brandon: Yes, sir.
Hugo L. Black: To see that they have put on the jury?
Everett N. Brandon: If Your Honor please, this record doesn't cover every term of Court for every year since 1958. It usually just refers to one term and does not go down through the whole six terms of civil and criminal court that might be held in the county in its various parts. It's not -- not complete at all in that regard. Now, there is testimony that has many as six, Mr. Sensenbach said, had been drawn on the petty jury. Now, the maximum --
Hugo L. Black: How many of them have served?
Everett N. Brandon: None sir, on this case --
Hugo L. Black: But any of them served on any case?
Everett N. Brandon: I can assure the Court that Negroes served on juries in Jasper County.
Hugo L. Black: How many have served according to the record?
Everett N. Brandon: This record?
Hugo L. Black: Yes.
Everett N. Brandon: That no effort has been made to determine that that I know of to that number. Actually served on the --
Hugo L. Black: I'm asking you -- I'm asking you these questions for this reasons. It's not to the state's interests, it's not to the Court's interest, set aside cases not based on the merits but based on the facts that the state does not put for fair proportion of colored people on the jury. What is the answer to having the states do that genuine?
Everett N. Brandon: Well --
Hugo L. Black: Genuine bona fide effort but you don't have to use microscope to find them.
Everett N. Brandon: If Your Honor please, I can only call your attention to the fact that this Court has never found jury discrimination in the case of South Carolina to my knowledge and that goes back to Franklin against South Carolina in 1910. I do not believe that there's jury discrimination in this particular case. I will not stand here and argue that. Now, in the beginning, my argument, I believe I said that we draw, only draw 12 new grand jurors each year. And assuming that one of those is a Negro, that is one-twelfth from the eight of 10% and at varying times --
Hugo L. Black: Is that enough?
Everett N. Brandon: It may not be enough but it seems to me, it certainly doesn't qualify proportionately which as I understand it, it is not required. It does not necessarily or even desire them.
Hugo L. Black: The requirement is that there'll be a bona fide efforts made to give a fair representation of the colored people on the jury.
Everett N. Brandon: Yes sir. Now, in order to do that I would submit that our procedure whereby we designate them on the registration rolls would work to that end.
Hugo L. Black: But why shouldn't we get away with that political designation?
Everett N. Brandon: Sir?
Hugo L. Black: Designating and dividing them up into one color, what's the reason for that if not just that?
Everett N. Brandon: Well, if you just ask me sir why? How can we see that we get --
Hugo L. Black: I have said you're not just to read -- I understand you're not responsible for the system and I maybe I question too much?
Everett N. Brandon: No, sir. Of course, I'm not responsible for the system but I am defending it and I think it works pretty well in South Carolina. I think that this case is just sort of an offshoot that has been picked up where there is an indication or sort of a braggadocio attitude on the part of one clerk of court. I know the gentleman. And I think he just got in this year and he was going to say that I know 90% of the Negroes in Jasper County and I in my mind know that that is not true. He doesn't know 90%. I'm not reading here any -- any facts.
Hugo L. Black: I would think it is already where --
Everett N. Brandon: It's not true -- I would think that probably this Court doesn't know 90% of employees that work here and that I don't know 90% of the people that work in the highway department. We've only got 500 in the headquarters in Columbia. It's just an act of prior again on this part and I've been stuck with it for several years. I do submit that the prior testimony in the record on behalf of Ms. Farley clears up several things that Mr. Sensenbach said that they don't necessarily jive. Now, we could have had better proof of what happened in 1954 but nobody knew that was going to be an issue until the petitioner asked him about the pausing of the indictment in the 1954 and he comes right back and says, we did exactly the same after that. If he had been discriminating then purposely, invidiously, would he have said that? Or if -- if he was purposely and invidiously discriminated, would he say that I know 90% of the Negroes in Jasper County and thereby lay himself open to the charge that went -- that he can manipulate him as he saw fit. Now, of course, we do have the other jury commissioners and I just don't think that it's possible under the system that we have public drawing for the petty jury list that it can -- you can lay aside one and hold out until you can pick one that is right that you need. They are in capsules and you can't tell until you unfold. And as I said in answer to your question a few moments ago that, I don't believe in percentages but if one out of 12 has been with any degree of consistency, several years out of the -- out of eight to 10, that is eight or 10 or 12% of whatever it is and back then they might not have been that many registered Negro male electors in the box. And of course, it's increasing along as to the numbers and the question would -- as it should be. And of course --
Earl Warren: Mr. Brandon, one thing that occurs to me is this. If it is a fair system, if they are giving the Negroes a chance to serve on the jury when that charge of this kind is made that is the charge of invidious discrimination, I would think it would be very easy for the state to have someone there who could say, that is not a fact because we know every Negro that's on this jury because we picked them from the voting register and the voting register designates them Negroes or white. And then show in the preceding how many have served. How many have been called but nothing with that kind is brought into the record by the state. All that comes out is what these folks on the other side are able to drag out of the clerk of the court and the commissioners. Now, why couldn't the state say very frankly, we have so many on this jury, we have so many on the other and as a result, there is more invidious discrimination?
Everett N. Brandon: Well, the only answer I can make to that is Your Honor is that lawsuits are tried sometimes a long way from the way place where the principal case was tried and in this instance it was in Columbia. And lawsuits are sometimes sloppily tried, that happens.
Earl Warren: But when a man's -- what a man's life is in jeopardy, they shouldn't be sloppily tried that way?
Everett N. Brandon: Well, they -- I certainly agree. Referring to one or two other cases, of course, the Court at all is entirely familiar with those cases where one Negro was picked on the grand jury in 18 years and one in 24 or one out of 600 and that sort of thing. We don't think that that situation exists here. We would refer to the case of Swain against Alabama, where the -- I think the overall percentages and variances and what not are not a great deal different from that in the principal case and this Court upheld that. And there is a statement in Swain that apparently a little effort in Alabama was made to ensure that all groups were represented upon the jury list. And I would submit that under our practice of taking them from a registration list was to show white and colored. And if that is fairly followed that that would be the best way to ensure that there are representative numbers of Negroes in the jury box and then you mix them up amd --
Earl Warren: How would that be would you say, I didn't get it?
Everett N. Brandon: I say that if that is followed fairly. Take two-thirds as our statute requires of all eligible male electors from the registration votes. Even if you take two-thirds colored and two-thirds white which I don't think would be entirely proper but if that were done, what complaint could be made if they are all put in the box and mixed up and thereafter there's no opportunity for discrimination as I --
Hugo L. Black: That is the electors. That would depend on the fairness of the filling by the electors, wouldn't it?
Everett N. Brandon: By the actual registration itself. Yes sir. They're of course, it would depend on that. I believe there's no question of that race in this case and I --
Hugo L. Black: But it comes into it of course when you may use of that as basis?
Everett N. Brandon: Yes. It could come into it but I certainly -- in South Carolina this doesn't exist. Now, Your Honor as far as prohibiting anybody from registering and I'm certain that counsel here will assure the Court that that is true. Of course, if you want to cheat, you want to be crook, there's opportunity and there's lots, lots of places. In closing, I would just like to say that I do not believe that this record should be used to hang the first jury discrimination case around the State of South Carolina in view of the fact that there has never been one up until now. Thank you.
Earl Warren: Mr. Perry.
Matthew J. Perry: Mr. Chief Justice, may it please the Court. A few words in reply. May I refer the Court to page 30 -- page 29 of the transcript of record with respect to the testimony of the witness of Willie Martin? Mr. Martin have testified that he have been attending the courts for eight or nine years and that during this entire period, he had seen only one Negro serving on the grand jury and that was during the February 1962 term of the Court of General Sessions for Jasper County. He -- this witness placed to the highest number of Negroes who served on the petty jury of that county at two. This testimony also appears at page 29. And over on page 67, the bottom of page 67 and on the top of page 68, where the witness Mr. Sensenbach referring to the grand and petty juries for 1959, there has been some question about whether there were Negroes on the grand jury during that period.
Earl Warren: 1960?
Matthew J. Perry: 1959, I believe at the bottom of --
Earl Warren: 1959?
Matthew J. Perry: Yes, sir.
Earl Warren: Oh, yes.
Matthew J. Perry: And going over to the top of page 68, Mr. Sensenbach answered the question concerning the inclusion of two names on the 1959 jury, whom he recognized as Negroes. At the top of page 68, the question was, “And you identified those as being on the petty jury? His answer was, “That is right sir.” So, this record does not support the statement that there were at any time more than -- that there were any Negroes on the grand jury during any period other than during the 1962 grand jury which indicted petitioner in this case.
Abe Fortas: Mr. Perry, are you suggesting that Mr. Martin's testimony is in parallel to a lot of weight. I notice that he asked if there had been attendance for claiming degree of regularity in the court sessions. Instead, they usually draw about once or thrice a year and I shouldn't -- it might be a little doubt as to whether his testimony is absolutely complete, he's been in court once or twice a year.
Matthew J. Perry: That -- that certainly might arise some doubt concerning the weight which the Court might like to put on that testimony. But we suggest to the Court that it is the only testimony in the record and over on page 30 of the transcript, the Assistant Attorney General of South Carolina in cross-examining this witness and in endeavoring to make him more specific inquired about the middle of the page, the lower middle of the page, “Was there anything unusual about this particular trial?” He said, “Unusual?” The question is in reference to other trials and the answer of the witness was, “Just one Negro was on the grand jury that is all that was unusual.”
Abe Fortas: I think that anything said rather is it?
Matthew J. Perry: Well, sir, we submit that it is evidence that --
Abe Fortas: You don't have the grand juries operating in public do you?
Matthew J. Perry: The grand jury comes out and makes its reports in the open courtroom and of course spectators can indeed ascertain the make up of the grand jury. There they're when they're being given the charges in the case, when they're being handed with newly prepared indictments and they come out periodically to report their findings to the Court. And any spectator in the Court can readily ascertain the makeup of the grand jury.
Hugo L. Black: What was the largest city on this county?
Matthew J. Perry: Richland I believe the county seat is the largest city in that county.I --
Hugo L. Black: And at what population?
Matthew J. Perry: I'm sorry. I do not recall that. Perhaps Mr. Brandon can assist us with it --
Everett N. Brandon: I would certainly think if not more than 2,500 possibly without --
Matthew J. Perry: That comforts with my --
Hugo L. Black: That's the largest town in there. Do they have good colored schools there?
Matthew J. Perry: Well of course, the schools have been improving to some extent but I'm afraid that they got a long way to go. We are of course concerned in some respects with the schools of that county now. They of course -- they failed to put it mildly sir. So gentlemen of the Court, the heart of our case is that the petitioner here has made out a prima facie case of discrimination just as was the case in Whitus versus Georgia. And just as was the case in Whitus versus Georgia, the state here has not come in and offered any comfort of evidence to meet or to disprove the prima facie case which we think the record in this case shows.
Earl Warren: Do you cite the case of Whitus in your brief?
Matthew J. Perry: No, sir. Whitus was decided since we submitted the brief in this case.
Earl Warren: That's your final brief?
Matthew J. Perry: Yes, sir.
Earl Warren: Very well.
Matthew J. Perry: Thank you sir.
Earl Warren: Very well.