Warren E. Burger: We will hear arguments next in the case of Patsy against Florida Board of Regents. Mr. Sims, you may proceed whenever you are ready.
Charles S. Sims: Mr. Chief Justice, and may it please the Court: The issue in this case is whether plaintiffs in 1983 actions can generally be required to exhaust administrative remedies, despite this Court's consistent and repeated holdings that such exhaustion is not required, despite clear congressional recognition of and reliance on those holdings, and despite the absence of any historical basis to support a change in this Court's longstanding construction of Section 1983. Unlike most cases that come before the Court, this case pronounced not a new issue, but an old, previously settled one and respondents have not come near to making the sort of showing required to justify a change in settled statutory construction. The case is here more than three years after petitioner first filed a complaint in the Federal District Court in Florida under Section 1983 alleging unlawful employment discrimination in violation of the Equal Protection Clause of the 14th amendment. The plaintiff has sought injunctive relief and damages. There have been no proceedings on the merits and no discovery. The district court granted defendant's motion to dismiss for failure to exhaust administrative remedies. The Fifth Circuit initially reversed that decision, relying on this Court's cases, but the court of appeals reheard the case en banc and decided that 1983 plaintiffs would henceforward be required to exhaust administrative remedies under traditional exhaustion standards. This Court's holdings to the contrary were distinguished. The court remanded for a hearing as to the adequacy of the particular remedies available to this plaintiff, and she thereupon sort certiorari here, and either summary reversal in light of recent legislation of which the Fifth Circuit had apparently not been aware, or plenary consideration which this Court granted.
Speaker: Mr. Sims, the three judges on the original panel all joined the majority on the rerun, didn't they?
Charles S. Sims: I had not noticed that, Your Honor. I think that the dissenting opinions in the court of appeals plainly set forth the basis on which they thought the question had been foreclosed before this Court in any--
Speaker: But none of the originals... well, each of them switched sides. I wondered if you had an explanation for it.
Charles S. Sims: --I do not, Your Honor. The rule against required exhaustion, which this Court has announced and adhered to as a matter of statutory construction, is, of course, not etched in stone. Our submission is that in light of congressional action in 1871 and more recently, that it is written into law. The question here is not one of policy. Instead, it is what Congress has meant. The imposition of an exhaustion requirement onto Section 1983 would be a revision of that statute, and statutory revision is a matter for Congress, not for the court. I plan to address here the three principal reasons why exhaustion cannot be required under Section 1983. First, because of this Court's cases in stare decisis. Second, because of recent congressional action; and third, because it is violative of the intention of the 42nd Congress. Of course, this Court's non-exhaustion precedents do not themselves prevent the court from changing its mind in deciding that it has misconstrued the statute. But neither can they simply be ignored, as respondents have ignored them. They form the background against which this case must be decided, and they impose a heavy burden of justification on those who would change the rule. The Court has held in six cases, all either unanimous or eight to one, that exhaustion cannot be required under 1983 itself. It has repeated that holding in eight additional cases without qualification. Just this term, in Fair versus McNary, every member of the Court subscribed to that proposition. And two terms ago, in Board of Regents versus Tomanio, when the court held that state statutes of limitations would not be tolled pending exhaustion, the court reasoned that such tolling would be appropriate only where... as was not the case under 1983... Congress itself had required resort to administrative remedies. In short, the rule against required exhaustion has not just been frequently repeated and applied; it is part of the fabric of this Court's 1983 jurisprudence. Moreover, their construction was not lightly reached. Pertinent history for the 1871 Congress was before the court in McNeese, as it had been somewhat more fully before nearly the same court two terms before in Monroe. The consequences of the rule were fully pointed out by Justice Harlan dissenting in McNeese and Damico. And Judge Friendly's famous attack on the rule in Eisen versus Eastman was squarely before this Court at least in Carter versus Stanton in 1972. The Indiana officials in that case relied squarely on Eisen. Arguments based on Eisen were before this Court at oral argument, and Eisen itself was being fully considered by the court in another case that term, its other principal holding being reversed in Lynch versus Household Finance. Beyond their significance as precedent, however, McNeese and its progeny assume an overriding importance here, because Congress has accepted and relied on those cases. Even if the court's original construction in McNeese were dubious, congressional knowledge of that decision and acquiescence in it would require that further alterations be made by Congress. Significantly, although Congress was plainly aware of that rule, it did not seek to alter it when it amendment 1983 in 1979 for the first time in a century to reverse this Court's somewhat restrictive decision in District of Columbia versus Carter, although Congress did re-emphasize the vital role of 1983... and I quote from the Conference Report... "in providing a neutral federal forum for resolution of civil rights complaints. " As this Court has held in United States versus Rutherford and in the Red Lion case, once an authoritative statutory construction has been brought to the attention of Congress and Congress has not sought to change that construction, although amending the statute in another respect, then presumably the legislative intention was correctly discerned. But retention of the rule is required here for reasons far stronger than simple congressional acquiescence. Congress has not just acquiesced. It has built and relied upon the rule in a way that precludes its reversal. Acting with the full knowledge that 1983 plaintiffs could not, under present law, be generally require to exhaust administrative remedies, Congress passed a law a year and a half ago authorizing exhaustion in certain 1983 actions under narrow and specified conditions. In Section 7 of the Civil Rights for Institutionalized Persons Act, 42 USC 1997e, Congress authorized courts to defer consideration of some 1983 cases for a maximum of 90 days, in suits brought by certain adults convicted of crime. The statute applies only to those who are in institutions which have adopted particular grievance resolution procedures in compliance with minimum procedures set forth by Congress and promulgated in somewhat greater detail by the attorney general. Four important points stand out from the legislation history of 1997e, and from its design. First, the legislative history makes absolutely clear that Congress knew the non-exhaustion rule was settled law. Sponsors repeatedly called it settled law. Representative Kastenmeier said that the statute was necessary to permit... that was his word... exhaustion which was not allowed under current law. And the Conference Report used similar language. Representative Wiggins, one of the Republic sponsors of the bill, indicated that some in Congress would have preferred a broader rule, but he acknowledged the impossibility of mustering a majority in Congress to do so. Second, Congress was not just looking at a small portion of a problem without attention to 1983 generally. The general problem of 1983 filings in federal courts was a major focus of congressional concern. Congress knew that prison filings which this Court had held and were wording, were subject to the same standards as all other 1983 cases under current law with the largest, single category of 1983 cases burdening the federal courts, and by far the most burdensome because of their generally pro se nature. Aware of that entire problem, Congress decided to deal with it piecemeal, one step at a time, by attacking its major source. Third, Congress was extremely and deliberately selective. It did not require exhaustion for all 1983 cases, or even for all 1983 cases that generally fell within the purview of the Civil Rights for Institutionalized Persons Act. Instead, only certain claims, those of adults convicted of crime, or in particular institutions which had adopted particular demanding grievance resolution procedures, were subject to exhaustion. And even as to them, only those complaints having to do with conditions of confinement were subject to exhaustion. Congress was thus not hostile to the rule generally. Instead, it made a small exception to the rule because it decided that prisoner cases posed a unique problem warranting a unique solution. Finally, and most importantly, Congress built on the non-exhaustion rule for its own special purposes. Congress rejected a proposal to subject prisoners to general exhaustion requirements such as those imposed on 1983 by the Fifth Circuit below, and last year by the Seventh Circuit in a case which was vacated by this Court, Jenkins versus Brewer. The motivating concern was not federalism, or even having as many 1983 cases as possible efficiently resolved at the local administrative level. Traditional exhaustion, which Congress rejected, would have accomplished that. Instead, Congress used this new exhaustion requirement for some 1983 cases, as an inducement, a carrot you will, to achieve particular substantive goals as a matter of national policy. The non-exhaustion rule is thus not just the background against which this case must be decided. It was the principal justification for 1997e, and indispensable for its effectiveness. Congress would not have passed 1997e if exhaustion was already permitted under 1983. More importantly, reading a general exhaustion requirement into 1983 would render the statute a dead letter. Only on the premise that 1983 cases cannot already be subject to exhaustion does the inducement mechanism that Congress created make sense. The states have no reason to adopt the particular procedures Congress meant to foster if their 1983 prison cases are already subject to exhaustion. In short, we think that 1997e makes this case even easier than its predecessors. The legislative history shows far more than passivity and silence. Instead, it shows that Congress has accepted the rule and built on it. Congress has put itself directly in the business of deciding when and to what extent and under what conditions exhaustion will be required. In these circumstances, further alteration of the rule is plainly a matter for Congress. As the court held in the Alyeska Pipeline case, when Congress begins making an exception to a general rule, even a general rule which is completely judiciously created, further adjustments should be left to Congress. Whatever the needs for courts to engage in interstitial adjustment with a hundred-year old statute untouched by Congress and unconstrued by the courts, surely the courts need not and should not intervene once Congress has placed a problem on its agenda and begun addressing it. By adopting an exhaustion requirement in reliance on the very policy considerations that Congress is in the current business of weighing, the Fifth Circuit usurped the legislative rule.
Speaker: Well, carried out to your logical conclusion in your argument, Younger against Harris should be overturned.
Charles S. Sims: No, that is not our position, Your Honor.
Speaker: I know it is not... but I would think it is the logical extension of your argument.
Charles S. Sims: No. The court in Younger and its progeny has made plain that it did not think that what it was doing was inconsistent with what Congress generally wanted. And the equity practice which Younger adopted has been part of this Court's jurisprudence dating back to the 1790's.
Speaker: Well, I don't know. Younger is rather recent.
Charles S. Sims: Younger is rather recent, but it relied on a series of cases dating a long way back. And the questions as to--
Speaker: Yes, but Younger just says you have to go exhaust your judicial remedies that are already started.
Charles S. Sims: --Younger says that if the state has already brought a case against you and that case is before a court, then the federal court should defer to the court that already has that case. That is a very different matter than 1983 in this particular action when there is no proceeding pending either in court--
Speaker: Well, he brings a 1983 suit and he gets it dismissed because the plaintiff should take his complaints into the state court, where he already is.
Charles S. Sims: --In the Younger case and every other case which followed Younger, there has been a pending judicial proceeding.
Speaker: Yes, exactly.
Charles S. Sims: Here, there is not only not a judicial proceeding, there is no pending administration proceeding.
Speaker: I understand that. But there might be.
Charles S. Sims: Well, there might be, but Congress has plainly--
Speaker: You certainly would not come out any different if there was an administrative proceeding pending.
Charles S. Sims: --Well, it depends on the sort of--
Speaker: Suppose he started to exhaust his administrative remedies and got tired of it and went to the federal court.
Charles S. Sims: --I think under Section 1983 he would have a right to go to the federal court.
Speaker: Yes, exactly.
Charles S. Sims: Of course, Congress could change--
Speaker: Pending or not.
Charles S. Sims: --I think Congress could change that rule if it wanted to.
Speaker: On the other hand, they might get a complete and adequate remedy at the first administrative level.
Charles S. Sims: I think there are many plaintiffs who have 1983 actions who find that that is so with the particular agencies they are dealing with. And those people, I am sure, are well advised to go through their administrative remedies. There is no indication that people do not do that. But this plaintiff did not think that the administrative remedies were adequate. And we think that Congress gave her a right to make that choice. A few words about the legislative history. Read against the background of this Court's cases, we think that 1997e is controlling because even if the court got 1983 completely wrong in McNeese, the fact is that Congress has relied on it. As the court said in similar circumstances in Cannon against University of Chicago, when Congress acts in reliance on one of this court's statutory constructions, the question is no longer whether Congress misperceived the law, but rather, what its perception was. But this is not a case where the court needs to perpetuate its own mistakes to give effect to more current legislation. The fact is that the court got 1983 right the first six times around, as the lopsided decisions in those cases should suggest. Respondents argue only that the 42nd Congress could not have said anything on the matter one way or the other because in their view, there was no law concerning exhaustion in the federal courts as of 1871. Their argument misconceives both the state of the law in 1871 and the principal themes of the legislative debate. First, the notion of exhaustion was not unknown to the 42nd Congress. The very year that Congress passed 1983 in United States against Clyde, this Court had held that federal courts were without any power to require exhaustion unless Congress had expressly done so. In another case that year, the Collector against Hubbard, the court there applied a statutory exhaustion requirement, but indicated that if Congress had not expressly provided that requirement by statute, the court would have been powerless to impose it. In fact, Congress had imposed exhaustion requirements in 1857, 1866, 1868 and 1871. In short, there was clear exhaustion law in 1871, and the law was no exhaustion unless Congress had expressly provided for it. As with the question of immunities and res judicata--
Speaker: Well, that law changed some as we come down closer to the 20th century--
Charles S. Sims: --It did, Your Honor.
Speaker: --in cases like Myers versus Bethlehem Shipbuilding--
Charles S. Sims: It did, Your Honor, but the question here is what the intention of the 42nd Congress was. And for that purpose, I think the court needs to focus on what the law was in 1871, and not what it later became.
Speaker: --Well, in Myers, I do not know that the court focused unduly on the intent of Congress in passing the National Labor Relations Act. It just focused on general principles which the judiciary had established by then governing exhaustion.
Charles S. Sims: With respect, Your Honor, the court in the Bethlehem versus Myer case paid very close attention to the particular administrative proceeding that Congress had established. And as one of its principal justifications for applying the exhaustion rule in that case, it said that it was obviously consistent with what Congress did, and an aid to the accomplishment of Congress's purpose; that is, that Congress had set up deliberately a particular administrative proceeding, and the court was only helping Congress along by making sure that it was not bypassed. That is plainly not the case here. As with immunities and the res judicata questions which this Court has focused on in previous years, Congress in 1871 should be understood to have acted against the background of the settled law at the time. Second, as to the debates themselves, not only is the conclusion of McNeese not plainly wrong, as would be required to reverse the non-exhaustion rule, it was plainly right. The debates in 1871 strongly suggest that if an exhaustion requirement had been placed before Congress, it would have been squarely rejected. The debates' responses have repeatedly described their goal as providing a prompt federal judicial remedy in federal court. Representative Elliot explained that 1983 provided for, quote, "the immediate jurisdiction" of the federal courts without, and I quote, "the appeal or agency of the state. " Opponents like Representative Storm opposed 1983 precisely because it takes the whole question away from the states in the beginning. Senator Blair explained that Section 1 superseded state officials. Representative Kerr complained that it transferred jurisdiction from state tribunals to those of the United States. Representative Arthur complained that it swallowed up state institutions, tribunals and functions. Representative Swan, another opponent, focused on precisely this point. He complained that it ignored state tribunals. Section 1 was the centerpiece of a vast transformation of power and of federalism enacted by Congress after the Civil War that this Court has frequently reviewed. The very model that Congress relied on, Prigg versus Pennsylvania, as Justice Stevens pointed out in Monell, makes clear how inconsistent required exhaustion would be with what Congress was doing. Under Prigg, critical federal rights... in that case, the rights of southern slaveholders... could be enforced directly in federal court without the interference of state officials. After the Civil War, of course, Congress was interested in a very different set of rights. But for safety's sake, and to make sure that its meaning would not be lost, it relied on the Prigg model with its direct enforcement of federal constitutional rights free from any opportunity of state interference, obstruction, hindrance of delay. Justice Story's opinion for the Court in Prigg said that it would make impermissible even state laws that would complement congressional legislation by auxiliary provisions for the same purpose. The 42nd Congress intended to provide for the prompt federal judicial protection of constitutional rights. Subsequent congresses have not waivered from that goal. The Court should give effect to that choice, to its own decisions and to the subsequently expressed will of Congress... the rule 1983 itself does not generally require exhaustion... and reverse the judgment below. If there are no further question I will reserve the balance of my time.
Speaker: I have just one question. Can you tell me what the Florida statute of limitations is applicable to a case like this?
Charles S. Sims: I cannot, Your Honor.
Speaker: May I ask, is there any 11th amendment issue in this case?
Charles S. Sims: I do not believe so, Your Honor. It has not been briefed before this Court, although it was raised at the petition for certiorari stage. The court has entertained cases against state universities and board of regents many times over the past few years... the Tomanio case--
Speaker: The only party is the Board of Regents of the state of Florida, and you ask for half a million dollars of damages. I would wonder--
Charles S. Sims: --Well, the plaintiff, of course, asked for both injunctive relief and damages. The Board of Regents is a body corporate. I think that makes some difference. In addition,--
Speaker: --If you sued the members of the board individually you could have had injunctive relief, but can you have it against the board itself, officially, if it is an agency of the state?
Charles S. Sims: --Well, this board is a body corporate. I would believe that would make some difference, Your Honor. In addition, with regard to the damages question, as we pointed out in our reply brief in support of the petition for certiorari, there are substantial funds that the university has which are neither derived from the state nor placeable by the university with the state. And as the Edelman case makes clear, that leaves at least the question of fact regarding whether or not the judgment here would come from the state, within the meaning of the Edelman case.
Speaker: If there is an 11th amendment problem, it would be jurisdictional if it were decided against you, would it not?
Charles S. Sims: If there were an 11th amendment problem it would be jurisdictional, although since there have been no proceedings, the plaintiff would, I believe, be free to refile and amend the complaint.
Speaker: Amend the complaint at this time?
Charles S. Sims: Well, there have been no proceedings. I mean, she tried to move forward with all deliberate speed. Thank you.
Warren E. Burger: Mr. Franks?
Mitchell D. Franks: Thank you, Mr. Chief Justice, and may it please the Court: We are here asking this Court to affirm the decision of the Fifth Circuit below and its adoption of a flexible exhaustion rule. We contend that this is a procedure with a relief oriented result without substantial denial of anyone's rights. Let me state what some of the things that 23 flexible exhaustion does not do as annunciated below. One, it does not displace 1983 as a basis of jurisdiction or federal review. It does not prevent federal judicial review. It does not diminish ultimate relief, if necessary, in the federal court. It does not thwart, in our opinion, the intent of Congress in enacting 1983 back in 1871. It does--
Speaker: What significance does the act of Congress have, giving limited exhaustion requirement for persons in institutions, which was passed recently?
Mitchell D. Franks: --I think that that was a recognition of Congress that the courts needed some assistance in providing for a means of addressing those grievances--
Speaker: Is it some indication, in your view, that at least Congress thought there was not an administrative exhaustion requirement which the courts had imposed?
Mitchell D. Franks: --No. To the contrary, I think it is an indication or a possible indication of Congress's reliance on the plain language of the statute that provides for other proper proceedings. In this case, they provided for them statutorily. But at least they recognize that there is the deferral to the states. And I think there is an indication there of their desire to require exhaustion in these circumstances and to provide a mechanism by which the courts... I mean, the states, and the agencies that are concerned to address those particular problems. I do not see it as being dispositive or the final word that only Congress can address the non-exhaustion rule. I do not feel that that is substantial support for the ironclad no exhaustion rule.
Speaker: Do you think there is an 11th amendment problem in this case?
Mitchell D. Franks: Yes. It was raised below in the district court, it was not addressed by the district court, it was not addressed in the Fifth Circuit, and the case was not briefed here. The issue that we responded to was... on the certiorari... as to whether or not the exhaustion rule should be reversed. But yes, there is an 11th amendment issue. However, we feel that this particular issue of exhaustion transcends the Patsy and the state of Florida, and is one that should be addressed by this Court. And it does not... the adoption of a flexible exhaustion remedy does not require the overruling of prior decisions. I will not bore you with a recitation of those, but they are outlined in both the amicus brief that we filed... or that was filed on behalf of respondent, as well as an analysis of the case law and the opinions of this Court and the Fifth Circuit below. And to respond to Justice Blackmun's question as to why the members of the original panel may have reversed themselves, I would suggest that a possible reason is that there was an opportunity for them to be persuaded that exhaustion or no exhaustion is not required, and it is not an ironclad rule. And that by analyzing the previous decisions of this case, you can come to the conclusion that exhaustion may be a procedural rule that can be adopted by the Court and is consistent with the plain language of the statute itself.
Speaker: Going back to the 11th amendment... a state can waive the 11th amendment, I suppose.
Mitchell D. Franks: No, Your Honor. Only the state legislature--
Speaker: Legislature?
Mitchell D. Franks: --may waive the 11th amendment.
Speaker: If it is applicable.
Mitchell D. Franks: They have waived the 11th amendment only in selected tort cases under our statute.
Speaker: But I take it the district court dismissed the case for failure to exhaust, right?
Mitchell D. Franks: That is correct, Your Honor.
Speaker: That the court of appeals reversed.
Mitchell D. Franks: That issue was never addressed as to... the 11th amendment was never addressed--
Speaker: They did not address it, but if you were on the down side, you were an appellee in the court of appeals?
Mitchell D. Franks: --No, we were... yes, we were the appellees. The appellee the first time, before the original panel, but we were--
Speaker: Yes, I understand. But you were supporting, trying to support, the district court's judgment.
Mitchell D. Franks: --That is correct, Your Honor.
Speaker: And you could have supported it by pressing the 11th amendment.
Mitchell D. Franks: Well, as I indicated,--
Speaker: Did you press it in the court of appeals?
Mitchell D. Franks: --Well, it was briefed,--
Speaker: On your side.
Mitchell D. Franks: --Yes, Your Honor. It was not briefed or argued en banc. Only at the original... briefed at the original panel.
Speaker: So, if the issue was properly before the court of appeals, they must have rejected your submission.
Mitchell D. Franks: I cannot subscribe to that, Your Honor, because I do not believe that that issue was considered by that court. And certainly, the record is clear that the district court did not address it.
Speaker: You have not raised it here? You have not argued it here.
Mitchell D. Franks: No, Your Honor, we have not, because of the grant of certiorari.
Speaker: Well, you could have-- --Well, do you want us to decide the 11th amendment point or not?
Mitchell D. Franks: Well, the Fifth Circuit--
Speaker: Because I just want to remind you you are asking us to decide something without any briefing by anybody.
Mitchell D. Franks: --That is correct, Your Honor.
Speaker: So, for once we will earn our money.
Mitchell D. Franks: We are asking you to affirm the Fifth Circuit for the reasons that they stated in their opinion, which we feel are supportable by--
Speaker: But I thought you said the 11th amendment was still here.
Mitchell D. Franks: --There is still an 11th amendment issue that somewhere will have to be briefed and will have to be litigated because the Board of Regents is indeed an agency or an instrumentality or entity of the state of Florida.
Speaker: If we decide in your favor, how will it get litigated?
Mitchell D. Franks: We need not reach that issue, Your Honor, because we need not reach--
Speaker: It will not get litigated.
Mitchell D. Franks: --It will not get litigated at least in this lawsuit, and it need not, because we feel that that is a constitutional--
Speaker: But it is jurisdictional.
Mitchell D. Franks: --Yes.
Speaker: So how can we decide the case on the merits if we have not got any jurisdiction to hear it?
Mitchell D. Franks: Well, there is the issue of--
Speaker: How could the court of appeals have decided it without--
Mitchell D. Franks: --I am sorry, Your Honor, I did not hear?
Speaker: --And could the court of appeals or the district court have decided it if there is a jurisdictional barrier to even entertaining the suit?
Mitchell D. Franks: Well, the Fifth Circuit and the court below obviously interpreted the non-exhaustion as a jurisdictional basis as well, and the Fifth Circuit has, at least in the Roach case--
Speaker: Yes, but the Fifth Circuit en banc overturned the district court.
Mitchell D. Franks: --No, Your Honor, they did not.
Speaker: Oh, that is right. They affirmed.
Mitchell D. Franks: They affirmed the district court in its ruling as to no exhaustion, flexible exhaustion, is required.
Speaker: That is right.
Mitchell D. Franks: But it did not overrule the... remanded it back to determine whether or not the remedies that were available in the state of Florida were adequate, and that still has not been determined as far as this record is concerned.
Speaker: As a matter of curiosity, before the panel decision, which is a very brief two or three pages, was there oral argument then, or was there only oral argument before the en banc decision?
Mitchell D. Franks: There was oral argument in both.
Speaker: Both cases.
Mitchell D. Franks: No, no.
Speaker: This was one of their summary actions.
Mitchell D. Franks: It was summary action that was argued en banc. This Court has stated that you only retreat or displace 1983 for compelling, persuasive reasons. Some of the things that the flexible exhaustion rule has annunciated below does... first of all, it does permit the court to determine how it is to exercise the jurisdiction given to it by Congress. It exercises its Article III analysis to determine whether or not it is ripe for adjudication or whether the case is complete as far as an injury is concerned.
Speaker: On this question of ripeness, could you tell me in your view when does the statute of limitations start to run for the 1983 client?
Mitchell D. Franks: Florida has a variable statute of limitations, but for back pay and termination and so on, the general statute of limitations is two years.
Speaker: And does it begin to run before or after the exhaustion process takes place?
Mitchell D. Franks: Well, I would submit that under the rationale of Tomanio, that the... if exhaustion is required as a jurisdictional prerequisite, that it would toll the statute of limitations--
Speaker: Are you asking us to reconsider Tomanio, as that is really what--
Mitchell D. Franks: --I do not know that you need to do that, Your Honor. I think the language is there that would... we are not talking about two separate proceedings running concurrently along; we are talking about an action that may originally go to the district court and if the rule is that you need to exhaust before coming here you go to exhaust, but I think that Tomanio rationale would support an equitable tolling so that the statute of limitations would be--
Speaker: --You said Tomanio would support an equitable tolling?
Mitchell D. Franks: --I believe there is language to that effect, Your Honor. The flexible exhaustion remedy, if adopted, would--
Speaker: Excuse me. Did I understand you to suggest earlier that really by flexible exhaustion, you are only talking about ripeness?
Mitchell D. Franks: --I am sorry, Your Honor?
Speaker: Only talking about ripeness?
Mitchell D. Franks: No, You Honor.
Speaker: They are different things. Flexible exhaustion rule and ripeness?
Mitchell D. Franks: That is correct. I think what it does--
Speaker: You made a reference to ripeness, and I just--
Mitchell D. Franks: --It helps determine whether or not the case is ripe for adjudication, is my point on that. In that way, it assists in the--
Speaker: --Well, ripeness would mean, I take it, that if the case is not ripe because something had not been completed, then there would be no into the federal court under 1983 until the case became ripe. Isn't that what ripeness means?
Mitchell D. Franks: --In this case, for example, it may very well be that there has been no final state action by the Board of Regents which would trigger a 1983 action.
Speaker: Is that what you mean by ripeness?
Mitchell D. Franks: Well, that is one of the ways in which flexible exhaustion would help the court determine whether or not an issue is ripe, is whether or not there has been a completed action which would indicate that there has either been a denial of due process or denial of equal protection or other constitutional right which has been violated.
Speaker: Well, what would happen to the petitioner in this case if instead of going into the federal court at the time she did, everyone had simply done nothing? She would still be fired, wouldn't she?
Mitchell D. Franks: This is not a termination case, Your Honor. It is a non-promotion case. It is a reverse discrimination action brought by a white woman who alleges that she was not promoted because of the affirmative action plan that the university is under because of a court order, quite frankly. And that is the basis of her complaint.
Speaker: If everyone had done nothing after the initial decision not to promote her, I take it that decision would have stood, would it not?
Mitchell D. Franks: Well, she had applied for various positions and had not been selected for those positions. Had she done nothing and had the university done nothing, it is presumed that she would still be in her old job as a secretary 3 or 4, or whatever her level was. She would still be employed and still be working. Another reason for adopting the flexible exhaustion remedy is that it enhances federalism, it sharpens the issues... and that is the point, Justice Brennan, that I indicated helps determine and makes the record determine whether or not it is right for adjudication. It may possibly moot constitutional claims. If this lady has a constitutional right to be promoted to a position and she exhausts her available and adequate administrative remedies, she may very well get that relief. And accordingly, there would be no basis to go into federal court and there would be no constitutional deprivation, or the remedy would have been provided for her.
Speaker: Counsel, was the question about Congress's most recent enactment for institutional defendants presented to the en banc court of appeals and argued by the parties?
Mitchell D. Franks: I do not believe that was the case, Your Honor, because I think that enactment came after the case was argued. But I do recall that... I seem to recall that that point was discussed in one of the dissents.
Speaker: Do you think that Act helps you or hurts you?
Mitchell D. Franks: I think it helps us, Your Honor. I think it is as consistent with the plain language in 1983 of other proper proceedings... there have no interpretation of that particular phrase of 1983, and it is an indication, along with numerous others on the part of Congress, to defer to the states and to give the states the opportunity to correct any wrongs that may have been made or may have been perceived to have been made. I also think that Congress has indicated a willingness to defer to the state by their enactment in 1988. I am not talking about the attorney's fees portion, but that portion which states that you will decide the issues on the basis of state law. Certainly, 1988 is contrary to the position of appellant that we have got one rule, when if we are applying the statute of limitations in 50 jurisdictions plus, and we are applying the substantive and procedural... not procedural, but law... of 50 plus states, it certainly does not necessarily bring for a single, orderly body of law for the federal judiciary to consider. There is another reason for adopting the flexible exhaustion remedy, and that is the plain language of... as I indicated, the plain language. Monroe tells us that there are three bases of... for Congress to have adopted the 1871 Civil Rights Act to overrule existing state law, and they were not particularly concerned with that. It is to provide a remedy where one was available, and it is to provide a remedy where one is available in theory but not in practice. We have come a long way since 1871. Times have changed to the point where Congress, I think, is recognizing, along with the Administration, that states can and should handle these matters. The plain language provides for other proper proceedings. The federal courts are supplementary to those remedies that are available in the states, whether they are administrative... particularly administrative... but that does no mean that they are predominant. And if these issue can be addressed in the context of federalism, then they should be done so. One other point on 1997. I indicated that this was a response to the crisis that Congress perceived, and as I indicated, it does permit the deferral of action to the states. And as noted by the case below, there is certainly no displacement of 1983. It is a deferral, and it does permit administrative agencies to address those. I indicated that it does not require overruling prior decisions, and I think that the commentaries in Chicago and Harvard Law Review articles that we have cited in our brief are indications of how the Fifth Circuit reached the result that they did below. And finally, this requiring the exhaustion of administrative remedies and basing it upon the plain language of the statute and upon federalism and all of the other compelling persuasive reasons I have listed provides for speedy relief. For example, Professor Clark, in 55 South Cal Law Review, has done a statistical analysis of the decisions of the federal courts in the 20th century, and it turns out that the average case, including all of those that are dismissed, is settled in 1.16 years. Now, this case has been on--
Speaker: You say settled. Disposed of.
Mitchell D. Franks: --Disposed of. Excuse me, Your Honor. Disposed of in 1.16 years. Now, this case has already been in litigation for over three years and we still have not gotten to the merits. Any case... it is our experience and opinion that any case that is going to go to trial takes an enormous--
Speaker: Mr. Attorney General, how in the world can this case get to the merits without the state surrendering its sovereignty?
Mitchell D. Franks: --I do not believe that it can, Your Honor.
Speaker: Well, what are we doing? Just going through motions?
Mitchell D. Franks: Certiorari was granted on the issue of whether or not the Fifth Circuit was--
Speaker: But now the 10th amendment has been raised in argument. It is here.
Mitchell D. Franks: --It is a cloud hanging over this particular--
Speaker: A cloud? If we rule with you, fine. If we rule against you, then we litigate it.
Mitchell D. Franks: --Well, if you rule... if you rule with me, it has still got to go back to the district court to determine whether or not the remedies that were available are adequate. Even if you affirm the Fifth Circuit. And I am urging that upon you because the case still has to go back at least on that portion.
Speaker: You were quite content with the Fifth Circuit opinion, I take it.
Mitchell D. Franks: That is correct, Your Honor. I think that it provides for a rule, and it is a procedural rule, that this Court can adopt based upon the statutory guidance given by the Congress.
Speaker: And when you lose, then you will raise the sovereign immunity point.
Mitchell D. Franks: That issue was raised below--
Speaker: You know, it is tempting to accommodate you.
Mitchell D. Franks: --I have no authority, Your Honor, to stand here and waive the--
Speaker: Why didn't you get the authority? You were there, you represent the state.
Mitchell D. Franks: --That is correct, Your Honor.
Speaker: You could have asked for it. Don't you represent the state?
Mitchell D. Franks: I am representing the state in this litigation, but I have no authority under the laws--
Speaker: Doesn't the attorney general have the right to--
Mitchell D. Franks: --No, Your Honor--
Speaker: --ask for legislation?
Mitchell D. Franks: --No, Your Honor, he does not. I am sorry, does he have--
Speaker: Doesn't he have the right to ask the legislature?
Mitchell D. Franks: --Oh, that is correct, yes, sir. But he has no authority to waive the sovereign immunity of the state. That is clear. Unless there are other questions, that is all I have, Your Honor.
Warren E. Burger: Very well. Do you have anything further, Mr. Sims?
Charles S. Sims: Just briefly, Your Honor. A brief point on the 11th amendment point that has concerned some members of the Court. I would agree with my colleague that the question would probably be open on remand. And if this Court hold that exhaustion is not permitted, the case then goes back down to the district court for further proceedings, and they have raised the question already, and it could at that point be decided by the district court. Because there are some particular aspects about the way this case is framed... that is, this Board of Regents is a body corporate rather than a state agency, and in addition, the fact that it may stand in the same position as the universities or boards in Delaware State College versus Ricks, Tomanio case, the Horrowitz case, the Roth case, Bacci case and others. I would think that since that question has not been raised here, and a judgment need not be... a final judgment entered against the state here... that the Court could decide the exhaustion question before it and leave the 11th amendment question for the lower court to address. In addition, with regard to damages, there is a recent decision of the Fifth Circuit, or the Eleventh Circuit, at 666 Fed 2d, 505, that bears on the question of whether the particular finances of this university, the fact that they have extensive funds which are not derived from the state or required to be kept in a state treasury, unlike their other funds, is relevant. And the Eleventh Circuit suggested that that was--
Speaker: As I understand it, you are requesting some equitable relief, aren't you?
Charles S. Sims: --We are seeking on the merits equitable relief and damages, that is correct.
Speaker: And the 11th amendment would not be a bar to your prayer for--
Charles S. Sims: Under Korn versus Jordan I would not think so, Your Honor. With regard to the other points raised, I think they were all policy questions, and as we have indicated, we think those are for Congress, not for the courts. Unless there are further questions?
Warren E. Burger: Thank you, gentlemen, the case is submitted.
Speaker: The honorable Court is now adjourned until tomorrow at 10 o'clock.


Warren E. Burger: Mr. Days, I think you may proceed whenever you are ready.
Days: Mr. Chief Justice and may it please the Court. This case presents the question of whether all voting changes within a state designated under Section 4d of the Voting Rights Act in 1965, must be pre-cleared under Section 5 of the same act. The facts of the case are these. In August 1965, the State of Alabama was declared subject to Section 4 of the Voting Rights Act of 1965. In March 1975, the City of Sheffield, Alabama notified the Attorney General that it was submitting to its electorate, a referendum on the question of whether it should abandon its present three-member commission form of government and return to an old domain or mayor-council form like that which governed Sheffield until 1912. The Attorney General responded within the appropriate 60 day period, that he would not interpose an objection under Section 5 to the holding of the referendum, which by that time had already carried, but stated that any voting changes made in order to implement that referendum approving the return to the mayor-council form would be subject to pre-clearance. The City of Sheffield submission to the Attorney General of these proposed voting changes was completed in May 1976. In essence, Sheffield was prepared to go to a system in which a Mayor and a non-member council would govern. The city would be divided in to four wards. The Mayor and Council President would be elected at-large without any residency requirements. The other eight council members would be elected at-large as well, two from each ward under numbered post and residency requirements. In July 1976, the Attorney General informed the city that he would not interpose an objection to the at-large system for electing the Mayor and Council President, but would object under Section 5 to the arrangance for electing the eight council members. Thereafter no declaratory judgment was sought by the City of Sheffield before a Three-Judge Court here in the District of Columbia as provided by the Act. In August 1976, this action was commenced by the United States to enjoin election scheduled by the City of Sheffield pursuant to an arrangement for electing the eight council members to which the Attorney General had objected. A temporary restraining order was denied by a single judge court, and the election was held in December 1976, a Three-Judge Court dismissed the government's complaint on the grounds that the City of Sheffield was not a political subdivision as defined by the Act, because it did not conduct registration for voting. Therefore, the court held that was not subject to the pre-clearance requirements of Section 5. It held additionally one member dissenting that even if the City of Sheffield were a political subdivision under the Act, the Attorney General await his right to object to specific elements of the mayor-council form of government, once he indicated he had no objection to the holding of the referendum itself. The Three -judge court was clearly correct in finding the City of Sheffield was not a political subdivision as defined by the Act.
Warren E. Burger: When the Attorney General responds to the Section 5, at the request from Mr. Drew(ph) , does he ordinarily, categorically affirm or disapprove or approve or does he --
Days: He doesn't.
Warren E. Burger: Or does he sometimes say there are just no objections.
Days: In some cases he says there are just no objections, in other cases request is made for additional information, in other cases, we indicate acting on behalf of the Attorney General that there is not adequate information upon which the Attorney General can exercise his responsibilities under the Voting Rights Act. In this particular case having to do with the holding of a referendum, it is not unusual for the Attorney General to permit the city to go ahead with the referendum reserving the right to see exactly what the impact of that referendum would be on voting rights, if in fact the referendum is carried. We respectfully submit that three-judge court erred however in concluding based upon its determination that Sheffield was not a political subdivision alone that the city was not required to submit voting changes under Section 5 for pre-clearance. Such a reading finds a little support in the language of the statute itself, in its original Legislative History, in decisions of this court, in the administrative practice of the Attorney General and in the circumstances surrounding the extension of '65 Act twice in 1970 and in 1975. The language of the statute properly read, speaks in terms of geography, geographic factors, not functional terms. Section 4b indicates that the substantive provisions of the act shall apply in any state which satisfies the provisions of 4b, namely that it maintain a test or device on a date specified in the act and secondly that less than 50 percent of its voting age population was registered or voted on the date specified in the Act. Once that is established then, 4a requires that no citizen shall be denied the right to vote in any federal, state or local election because of its failure to comply with any test or device in that state. The preposition 'in' is used in Sections 4a and 4b should reasonably be read to mean within the geographic confines of, in the absence of any evidence to the contrary. Reference to local as well as federal and state elections reflects the reach of the Acts, provisions to all public elections held within a state, not just those conducted under direct state supervision. Moreover the language of Section 4a which describes how a state is covered under the terms of 4b may terminate such coverage requires the state to show that for an expressed period of time no denials or abridgments of the right to vote on account of race or color through the use of such tests or devices have occurred anywhere in its territory. The word 'territory' is not defined in the Act but it is commonly regarded as a geographic and not a functional term. Where a state meets the first requirement of Section 4b namely, it maintained a tested device but does not satisfy the second, the entire state may not be subject to the provisions of 4a. Under such circumstances the Act reveals that a political subdivision of that state may be covered, however, as a separate unit. The use of this disjunctive phrase in any state or in any political subdivision of a state in 4b dictates such a reading. It is at this point that the definition of this separate unit, the political subdivision become pertinent. For only one in which less than 50 percent of the voting age population has registered or voted on the specified date can be designated. Section 14(c)(2) defines the political subdivision as any County or Parish except that where registration for voting is not conduced under the supervision of a County or Parish. The term shall include any other subdivision of the state which conducts registration for voting. Thus, a County or Parish or any other entity that supervises the conducting of elections which does not meet the less that 50 percent of the voting age population provision cannot qualify as a political subdivision for purposes of the Act.
Byron R. White: You concede, I take it, Mr. Days that Sheffield, Alabama does not fall under that statutory definition of political subdivision.
Days: We do concede, it is not a political subdivision under the Act. But we submit that the term political subdivision has no operative significance under the Act unless it is tied to the percentage triggering mechanism of 4b. As this Court has recognized, Congress intended through the enactment of the Voting Rights Act to rid the country of racial discrimination in voting. The Act itself was designed not only to end discriminatory practices which Congress had found, denied or abridged the right of citizens to vote on account of race or color but also to reach new practices in the future that might have similar purpose or effect. Congress was urged about the Department of Justice to enact the 1965 Legislation because it had concluded that powers given to it under earlier statues to enforce the Fifteenth Amendment on a case by case basis had proven ineffective. This ineffectiveness had stemmed largely from the persistent creation of new stratagems to perpetuate racial discrimination in voting as soon as present tactics were outlawed. In response, Congress marshaled an array of potent weapons against this evil with authority and the Attorney General to employ them effectively. There is nothing in the Legislative History of the 1965 Act to support the view that when a state was brought within its provisions, Congress intended to include certain types of voting changes within that state from pre-clearance while excluding others. The reach was clearly designed to be geographic and to affect actions of the state. State being defined traditionally under the Fourteenth and Fifteenth Amendments to include any instrument of the states such as cities or other governmental bodies. The Legislative History of the Act also makes clear that the term political subdivision was defined in 14(c)(2) for very practical reasons. In those situations where an entire state was not covered under 4b the only smaller geographic area for which the Director of Census could make a determination under the formulation of 4(b)(2) as to the percentage of voting age population that was registered in voting in the 1965 Presidential Election was the County or Parish. Although, Congress has never explicitly addressed the issue presented in this appeal, Congress extended the Voting Rights Act in 1970 and 1975 under circumstances that justify the conclusion that it understood the pre-clearance provisions of Section 5 of the Act to apply to all voting changes occurring within a state or political subdivision designated under Section 4b. At first, Congress was aware of the fact that the Attorney General, the federal official, charged with responsibility for administering the Act had consistently interpreted it to require pre-clearance of all coting changes within covered states of political subdivisions irrespective of whether the submitting authority supervised the conduct of registration for voting. During consideration of the 1970 extension the failure of the city if Anniston, Alabama in 1968 to obtain pre-clearance of a change in its electoral system was brought to the attention of Congress as an example of why extension of the Act was required. Anniston, like Sheffield, does not conduct registration for voting.
William H. Rehnquist: Is it clear, Mr. Days, form that colloque that the part of the Legislative History you are relying on that Congress focused on whether or not the particular subdivision conducted registration for voting.
Days: It is not clear that Congress focused on that particular issue to determine whether the reach was going to be down below the County or Parish level but we think that the environment does indicate that Congress understood what the reach would be. There is nothing in the Legislative History that specifically indicates that Congress was concerned with the city or school board level of elections. In 1975, my predecessor J. Stanley Prodinger(ph) testifying in favor or further extension of the Voting Rights Act informed Congress that Section 5 objections had been lodged against the cities of Birmingham, Talladega, Mobile, and Alabama between 1970 and 1973 as well as against cities and a number of other states. Between August 6, 1965 and May 1, 1977 the Attorney General has received more than 8,000 proposed changes by non-voter registering political units within --
Byron R. White: Mr. Days what do you -- what is a local subdivision which is not a political subdivision as defined by the Act. It isn't the political subdivision but is it the state? Well, Section 5 says that whenever a state or a political subdivision makes a change it is supposed to submit --
Days: Yes.
Byron R. White: Now, if it is neither one of those well why is it required to submit or how does it even get to the Attorney General?
Days: Well, the interpretation that we urge upon the Court is that once a state is covered then all political units --
Warren E. Burger: I know --
Byron R. White: -- once covered --
Byron R. White: I know it could be that it is covered for the purposes of earlier -- because of Section 4, but it might not -- there might be a clearance procedure there going to court. But in this Section 5 it says that whenever a state of political subdivision makes a change --
Days: Well I think it says that --
Byron R. White: Well, you do not say the subdivision as a state do you?
Days: I do not but the interpretation --
Byron R. White: Well, what do you ? How does Section 5 apply to non-political subdivision, unless it is the state.
Days: Well, I think that the interpretation of the term state as reaching to all governmental units that are creatures of the state is how that should be interpreted. We are not particularly concerned whether a city actually does the submitting, but the state actually --
Byron R. White: Well, for purposes of Section 5 then the political subdivision is just irrelevant I think.
Days: If a state is --
Byron R. White: If a state has been covered.
Days: That is exactly a correct term.
Warren E. Burger: Then what meaning does language of political subdivision have then Mr. Days?
Days: I think its meaning is tied to the triggering mechanism under 4(b)(2). In other words, the act is not designed to cover every political subdivision, it covers only political subdivisions within those states that had testing devices, and which meet the 50 percent or below 50 percent triggering mechanism. One cannot understand the use of the phrase political subdivision, in 4a for example, merely by looking at 14(c)(2), one has to look to 4(b)(2) and that triggering mechanism to understand what it means. If one were to look at 14(c)(2) alone, and then look at 4a, the conclusion that one would have to reach is that any County or Parish that conducted registration would be covered by the Act, even though it did not meet the below 50 percent triggering mechanism. In other words 14(c)(2) is defined in part by the triggering mechanism of 4(b)(2).
William H. Rehnquist: I take it a political subdivision can be covered even of the state in which it exists, it is not.
Days: That is correct. The three-judge court itself recognized that once a state was covered every political subdivision within the state would be covered as well. Of course, under those circumstances, Counties within the State of Alabama, would not be specifically designated. They would come in along with the state designation. It makes little sense we submit, to suggest that subdivisions below the County or Parish would not also be brought in under that logic. I might say that over 700 of such changes submitted to the Attorney General from Alabama, under Section 5 have come from non registering units within that state such as cities. The second thing that Congress was aware of was the fact that this court had construed section 5 to reach voting changes in covered states, a political subdivision that altered the election law in even a minor way. Even where such changes did not relate directly to the registration process itself. This court's decisions in Allen were specifically mentioned in the testimony in Legislative History of the 1970 extension, and the Perkin's decision was much discussed during proceedings leading after the 1975 extension, particularly as it related to ending voting discrimination in Texas city. Moreover Congress was aware that the Attorney General had adopted a reading of Section 5 consistent with this court's rulings in Allen and Perkins to reach changes involving redistricting, annexations, relocation of polling places and of election laws relating to numbered posts, staggered terms and candidate filing fees, at the state county and city level. We respectfully submit that the fact as I have described demonstrate that the interpretation given Section 5 by the three-judge court exempting certain voting changes within states designated under Section 4b from pre-clearance requirements, depending on whether they supervise the conducting of registration for voting is erroneous, and should be reversed. Over half of the submissions to the Attorney General since 1965 have been from non registering governmental units. The intent of Congress to subject to Section 5 pre-clearance voting changes of governmental units that did not conduct registrations, most clearly seen in the Legislative History of the 1975 extension. For there, the major focus of the testimony and debate over extending coverage to the state of Texas, was that it would serve to check changes, to at-large majority runoff systems by cities and school boards, governmental entities that do not conduct registration in the State of Texas. If the court below is correct, then Congress which enacted the Voting Rights Act in 1965 and extended it twice, thinking that its provisions would eradicate the insidious and pervasive evil of discrimination in voting, divide the solution that missed the mark by half. Your Honor, at this time I would like to reserve additional time for rebuttal.
Warren E. Burger: Very well Mr Days. Mr. McAlister.
Vincent McAlister: Mr. Chief Justice, may it please the Court. I speak tonight for the dignity of men and the destiny of democracy. I urge every member of both parties, Americans of all religions and all colors from every section of the country to join me in that cause. At times history and fate meet at a single time in a single place, to shape a turning point in the man's unending search for freedom. So it was at Lexington and Concord, so it was a Century ago at Appomattox, so it was last week at Selma, Alabama. From that lofty and noble beginning by President Johnson in March of 1965, the Voting Rights Act was presented to a joint session of Congress. Today twelve-and-a-half years later, I appear before you representing the City of Sheffield, Alabama in a suit which we think is out of the shadows and perversion of that great Act. Sheffield Alabama is a city of 13,000 people relocated in North-West Alabama. About 20 miles, equal distant from Mississippi and Tennessee. We are on the banks of the Tennessee river, 40 miles upstream from shallow landing. A part of the muscle shows and Tennessee valley authority area. Our town began in 1885 with a mayor-council form of government, which we retained until 1912, when we changed to a commission form of government. The commission formed remained in force from 1912 until 1975, when as a result of a special referendum, the citizens elected to revert back to the mayor-council form. The laws of the State of Alabama governed the creation, organization and function of cities in the state. The law requires that in Cities of Sheffield's population that cities holding a mayor-council form of government that the councilmen be elected at-large and reside within the wards established. The change in the form of government in Sheffield in 1975 was precipitated by voter apathy in the commission form, a desire to have a full time Mayor and the hope for more citizen involvement in local government. In March of 1975, prior to the referendum, the Mayor of the City of Sheffield wrote the Attorney General advising of the proposed referendum, and the Attorney General replied that he did not interpose any objection to the referendum. Let me stop at this point to emphasize that under Alabama law, once you elect through a referendum and the citizens vote in the referendum to change the form of government. That sets in motion a chain of events that cannot be stopped by the will or choice of any elected officials in the city. The city must then prepare for the change from the commission to the mayor-council that involves qualifications of candidates, setting of election dates, establishing of the wards.
Potter Stewart: At the time you wrote to the Attorney General, you certainly must have thought that Sheffield was covered.
Vincent McAlister: Well, the Mayor wrote that letter.
Potter Stewart: Well, he thought Sheffield --
Vincent McAlister: Well, he thought that possibly it was covered.
Potter Stewart: Was there any doubt expressed in his communication?
Vincent McAlister: In his communication, he expressed, he said, ?I don't think that we are covered. I don't know, I am just writing you out of an abundance of precaution in essence?. And we say that at particular point, if the Attorney General had an objection, he knew what the laws of Alabama were as well as we did and he knew that once the citizens voted to have a mayor-council form, that we were bound under state law to have our election at-large. In other words, the candidates were to run at-large, that's what the Alabama law requires.
Potter Stewart: Now you are directing your argument now to the second issue.
Vincent McAlister: Yes Sir, I am.
Potter Stewart: Which we do not reach, if you are right on the first issue.
Vincent McAlister: That is correct. So we think that at that point if he had an objection to what we were doing, the time to object should have been right then. But to wait over a year later and come in and say, we approve everything else you have done but we do not approve of your electing your candidates at-large. We think that would ridicule us. Let us object to that at the beginning, if that is what you are objecting to.
Speaker: May I come back to the point you made?
Vincent McAlister: Yes Sir.
Speaker: Did Alabama law require that elections in Sheffield be at-large or once the vote was favorable in the referendum?
Vincent McAlister: Yes Sir.
Speaker: No option whatever at the local level.
Vincent McAlister: No Sir. Further the Attorney General seeks to young polls what we think is his will on the City of Sheffield through the force and power of the Federal government without any basis of law. There is a dangerous equation in this case to the way the Attorney General thinks with the law. At the risk of being elementary, I would remind the Attorney General that it was out of that same Lexington and Concord, that President Johnson referred to in 1965, that produced these words. In the government of the Common Wealth of Massachusetts, the Legislative Executive and judicial power shall be placed in separate departments. "To the end that it might be a government of laws and not of men.? The Voting Rights Act does not apply to Sheffield. It does not require any strange semantics or legal gymnastics to make it apply. The Act applies only to a state or a political subdivision that denies or abridges the right of a citizen to vote on the account of race or color. A political subdivision is defined in the Act, and everybody admits that Sheffield does not fall within that definition.
Thurgood Marshall: The city of Anniston probably met that.
Vincent McAlister: No, Sir.
Thurgood Marshall: Has any city in Alabama.
Vincent McAlister: No city in Alabama registers voters.
Thurgood Marshall: All I am saying is as the Attorney General said that.
Vincent McAlister: I talked to the Solicitor General just as that.
Thurgood Marshall: That all of the cities are exempt from the Act.
Vincent McAlister: He said that no city in Alabama registers voters and is not a political subdivision within the definition of the Act.
Thurgood Marshall: But did he say Anniston was included under the Act?
Vincent McAlister: I do not think so that is the issue.
Potter Stewart: Well, he says that Sheffield is too. Annistion, Sheffield all of them are.
Vincent McAlister: His position is that every political unit in a state is within the Act.
Speaker: But they state in the State of Alabama.
Vincent McAlister: Yes Sir. Wish he does not state what a political unit is either.
William H. Rehnquist: Well, he says that in effect once a state is covered you look to the nature of the change rather than to the type of political unit its making.
Vincent McAlister: But what kind of change.
William H. Rehnquist: All kinds of change, I suppose that has been decided in the previous cases in this court.
Vincent McAlister: I mean what kind of political unit? In other words, in a state or in a local, community, you might have that in agricultural stabilization committee or a water drainage district. In our area we have a water district that might take in two or three square miles or 20 square miles. I will point out kind of a ridiculous example, in my brief, how about a school election at a University, the university of Alabama. Is that a political unit. We do not know.
Thurgood Marshall: The University levied taxes.
Vincent McAlister: The University of Alabama, No Sir.
Thurgood Marshall: Well, then it is not a political subdivision. Would you agree?
Vincent McAlister: No Sir, I do not know what is the definition?
Potter Stewart: The commission wants that ? the statute tells us what a political subdivision is?
Vincent McAlister: That's exactly right.
Potter Stewart: So we do not have to wander under your submission.
Vincent McAlister: Yes Sir. We say that the Act does not purport to apply to a city that does not register voters. And again we point out that the aim of the 1965 Act, was to register voters. And again referring to President Johnson's speech, he says, ?If the Bill will provide for citizens to be registered by officials of the United States government, if the state officials refuse to register them?. The Bill was introduced in the Congress in 1965, the following date, if we recall that President Johnson made his speech. Mr. Katzenbach, the then Attorney General appeared before the Congress and explained the Voting Rights Act to the committee that was handling the Bill. He testified it linked, and I have quoted in my brief from his testimony, before that committee. Mr. Katzenbach had no doubt in his mind how voter registration was conducted in the State of Alabama. He stated that he knew how it was conducted in the State of Alabama. We state this to the court, how can a piece of legislation like the Voting Rights Act that was aimed at a particular state, Alabama, aimed by the President of United States that triggered his speech, Selma, Alabama, aimed by the Attorney General of the United States, Mr. Katzenbach said, he knew how voters were registered in Alabama. And aimed by the Congress, why do we at this point, have to end up according to the argument of the Solicitor General, look in to some type of ambiguity in the Act to come forth with the way the Attorney General has construed the Act, and the subsequent re-enactments of the Act by the Congress, it just does not make sense to us, that an Act aimed at theory may protect a wrong, could end up to be so ambiguous. We say its not ambiguous, we say its clear, we say that the construction that the Attorney General seeks to place on the Act is clearly erroneous. The only justification for his argument and he makes it in the brief, is that we need uniformity in the application of this Act. Also, he says that the case by case process of solving voter problems is inefficient. We would answer that this way. Oliver Flint(ph), the Black Councilmen is Alabama, Sheffield, that was elected in this at-large election, he does not appreciate the uniformity argument at all. And he would prefer the case by case method because he would be assured under that method of retaining his seat on the council. Also we state that the argument of the Attorney General fails completely under scrutiny. Section 4 of the Act upon which Section 5 depends deals exclusively with states and political subdivisions that use discriminatory tests or devices to deny persons the right to vote You must be a voter registering state or political subdivision to have a test or device.
Potter Stewart: Well, the state is covered whether or not it does carry on registering function. The state is simply covered, it is covered isn't it? There is not test for whether or not it registers voters, isn't it?
Vincent McAlister: Well it says in 4 that the triggering feature in 4 is a state or political subdivision that has test or device. Ordinarily, the state legislature would have provided for the so called test or devices that were struck down.
Potter Stewart: So a state that had a test or devices is covered.
Vincent McAlister: Yes Sir.
Potter Stewart: And a political subdivision is that has a test or device is covered and a state everybody presumably know what a state is and this case involves a issue what is a political subdivision?
Vincent McAlister: Yes Sir. We also state that under the Act, I mean, using our logic it is completely sensible to apply it that way under Section 5 of the Act that you recall, there is a procedure for declaratory judgment in the District Court of Washington D.C, by a state or a political subdivision and I think, we could go into the District Court of Washington D.C and get dismissed because we are not a political subdivision and we can not get that declaratory judgment.
Potter Stewart: Attorney General would file a motion to dismiss, and it is a --
Vincent McAlister: The court might own its own motion. Further, our third point about the argument of the Attorney General is we think it leads to absurd applications and I mentioned that before, he says political units and we say to apply this Act or seek to apply to school elections and water districts, drainage districts, agricultural committees and others is a perversion of a good Act. In conclusion, we say that the City of Sheffield is not covered by the Voting Rights Act and that the opinion of the District Court should be affirmed. Thank You, sir.
Warren E. Burger: Thank You Mr. McAlister. Do you have an;anything further Mr Days?
Days: Yes Mr. Chief Justice. Just a few comments. Counsel was asked whether Sheffield doubted its coverage under Section 5. I believe Page 14 of the Appendix, which contains March 20th letter indicates that Sheffield did not consider itself excluded from Section 5 coverage, there was merely some question about whether that specific change was subject to Section 5. Page 14 of the Appendix. The first time, a specific issue raised here was presented to the court, was in the post trial brief of the City of Sheffield.
William H. Rehnquist: How about the second paragraph of that letter on Page 14, General Days, where it says, of the Appendix, it is doubtful that this proposition is to change the forms of Municipal government is covered by the 1965 Voting Rights Act. Don't you think there is some intimation in that language of the position now taken by the appellee here.
Days: Well, I would concede that there is some intimation but I think that read more exactly, it refers to not whether the city itself is covered but whether this particular change is coveted under Section 5 and requires pre-clearance.
William H. Rehnquist: That is what it says.
Days: Now, in so far as the force of Alabama law is concerned, once a referendum of this kind takes place, I submit that the record reflects that there was a great deal of confusion as to exactly how Alabama law would come in to play in this case. The city itself said, it was returning to the form of government in existence in 1912, an opinion of the Attorney General of Alabama in 1968 seemed to indicate that a return to that form would require election by districts and not at-large. The Attorney General's opinion is in the Appendix at Page 54 and therefore there was some we submit, reasonable doubt as to how the Alabama law would apply whether the law enforcing 1976 would have any forcing effect at all. In so far is how far down Section 5 provisions reach, we think that there is some guidance on the counsel's example of University of Alabama elections. First of all, this court has spoken in such cases as Terry v. Adams about elections at which public issues are decided but that's what the Fifteenth Amendment is designed to reach. Secondly on Page 26th of our brief, we quote a statement by Attorney General Katzenbach in which he responds to a question, would it cover an election for a school board and he responded, yes it would Mr. Chairman. Every election in which registered electors are permitted to vote would be covered by this Bill and finally the act itself in Section 14(b)(1) provides some guidance as to its reach, because it talks about elections such as primary, special or general elections and talks about candidates for public or party office and propositions for which votes are received in a election. We submit that all these definitions give a fairly clear sense of the scope of the Section 5, in so far as elections are concerned. Thank you very much.
Warren E. Burger: Thank you gentleman. The case is submitted.