Earl Warren: James P. Wesberry, Jr., et al. versus Carl E. Sanders, et al.
Paul Rodgers: Mr. Chief Justice and may it please the Court.
Earl Warren: Mr. Rodgers.
Paul Rodgers: I believe yesterday, to summarized briefly yesterday the position that we could've sometime state to the Court was that we believe that the decision of the District Court should be affirmed on the ground of -- on the grounds of equitable abstention and that the decisions, the legal issues in this area should be reserved for future consideration to be decided after state legislatures, had a full opportunity to redistrict congressional districts along population lines and it only until such time should this Court at that time of endeavor to determine the legal issues within that area. In other words, whether or not this Court is going to continue to abstain from requiring congressional redistricting or at such time require the congressional redistricting to be performed. Now --
Earl Warren: Mr. Rodgers, one thing about me is your -- you don't help us very much in indicating how long that abstention should be, whether it should be for one session of the legislature after they've already had one session in which they could do it or whether we ought to go farther or whether we ought to leave those loose ends. Can you help us on that?
Paul Rodgers: Well, it's rather difficult to tell this time for this reason, that you take a three-judge District Court in Georgia in Toombs versus Fortson has applied the federal analogy to our state legislature that said that if you reconstitute one House of the state legislature according to population, that would satisfy constitutional criteria. Now, Georgia had done that. We still have one House, the House of Representatives, largely apportioned according to geography. Now, if this Court should decide in the decisions in the cases that's recently heard in both Houses to some extent should reflect population then of course that would mean that Georgia would again have to reconstitute the House of its legislature. We feel that -- that we've -- that there cannot be a full opportunity for the state legislature to reapportion until after we are certain that the Georgia General Assembly had been reconstituted along constitutional lines, we cannot be certain of that until after this Court renders decisions in the cases it's just heard. So we'll say -- of course we feel that the General Assembly is going to redistrict in its January session but we'll say, we'll assume for the purposes of further consideration that the General Assembly redistricted but that the appellants were not still satisfied but that soon after, we'll say that the session closed, this Court should then require that both Houses of a legislature be reconstituted along population lines or more closely to population lines. And Georgia would like -- and have to reconstitute the House of Representatives. That might take another year or several more months so it's difficult to tell, we ask is -- is that a -- a -- that the state legislature, when it -- when we're certain that it has been constitutionally constituted and had a full opportunity to act and solve this problem in the traditional American fashion, then after that time had expired and if the appellants are still not satisfied with how the congressional districts have been reconstituted, then they can come back to Court. It's difficult to pinpoint any particular amount of time Your Honor, at this stage of -- at -- at this stage of proceeding. This morning I would first like to address myself to what we consider to be the undesirability of elections at large. Now, the requirement of elections at large is the course of mechanical device is very easy to apply but we feel that the inequity resulting from elections at large are probably worse than the present circumstances. I think one of the best descriptions as to the disadvantages of elections at large was stated by Judge Knowles who was the dissenting judge in the case of Bush versus Martin which was a Texas case where two of the judges in the three-judge court found against Texas' program for redistricting. Of course, the Court -- Justice Black have to confirm with the other member -- other members of the Court that stayed the application of their judgment but Judge Knowles stating, “We think its particularly appropriate to the Georgia case as well, although we don't have as many cards but we think the same principle would apply.” Judge Knowles stated, “All districts are presently served by a Congressman even if at large elections were held, there's reason to assume many people in those districts that want at least the opportunity to re-elect there in the Government, Congressman in the at large elections. But it is highly unlikely that Congressman from the thinly populated region far removed from the metropolitan area and known only in that district to get re-nominated or re-elected in at large elections. If this experienced Congressman should be swept out of office in an avalanche of statewide vote, it would probably be done none to their lack of statewide, it's more to their lack of statewide reputation than to their qualifications or lack of them. The consequences, the inherent unfairness to the people living in the present districts from not having a reason or opportunity to have their own Congressman reelected is disturbing. And the consequences to the entire State of Texas when the removal of these Congressmen is threatened not by the expressed will of the people of Texas through normal political action but by the politic but -- but by the practical operation of an unfortunate intervention and untimely order of a federal court is likewise disturbing. The election of Congressman at large would call a far more serious discrimination and consequences for people living outside the great metropolitan areas and is even alleged to exist presently, or today every region has substantial representation by districts, hence, only claimed present serious under representation in a few areas. At large elections would leave many of the regions of the State of Texas and the people practically speaking without representation at all. And we fear Your Honor that that would apply not only in Georgia but in every other state that would have to suffer elections at large with congressional representation. And of course the ratio in your congressional districting case is a no or nowhere near to the series ratio presented by state legislature. In other words, I understand that the worst -- alleges that the worst ratio in your state legislatures as I believe in New Hampshire was -- in New Hampshire was approximately 750-to-1. I think the worst ratio in your congressional district throughout the nation is 4-to-1 but nevertheless if you require a strict population standard in the apportionment of these congressional districts, then you can -- the Court can quickly tell from the record that the vast majority of the states of this nation allow this if -- if you use the population standard, these standards. We move on to equitable abstention doctrines to the origin with -- in a more fuller sense. I think the first thing we must take into consideration is -- is the significant political changes coming to Georgia. Now, the call for Georgia's political structure in the past, its historic structure in the past, Georgia was subject to the grasp of the rural areas, probably more so in any other state and union for this reason. We have the county unit system that this Court is well aware of and the county unit system applies of course in the democratic primary, if we call the strength and power of Democratic Party of Georgia as the cliché go, the -- the democratic primary of successful nominees there are tantamount to election. Well consequently, the Governor and the Chief Officers of the State, the Chief Executive Office of the State when nominated by the rural areas of the State of Georgia and consequently they were elected. So of course in Georgia, we have the Governor and the Chief Official of the state government under the control and nomination of rural areas. Now, after this -- and now whenever the Court in Sanders versus Gray overturned that in this decision in large one was affirmed. Of course that's true that many county unit systems in the primary, the last primary in Georgia, the last democratic primary, when the government -- when the nominees ran statewide, every person's vote counted equally and of course that gave full weight to the metropolitan areas. So we say in the courts, by virtue of that, we've had a modern elected as Governor of Georgia, this Court knows Governor Carl Sanders which of course is the significant and substantial political difference between Governor Carl Sanders and one of our past Governors Marvin Griffin. They present two different approaches in polity and I think the Court can really recognize the contrast. But the overwhelming defeat of Governor Marvin Griffin by Governor Carl Sanders indicates, we think dramatically, the change has come to Georgia politics just by the elimination of the county unit system. It's also quite clear in Georgia that the Governor as it is in many states has a tremendous amount of influence and power over the workings of the state legislature. He exert substantial power there and we have that now, a Governor who is of course it has to be amenable and of course is susceptible to where -- to the popular feelings of the metropolitan areas of the state. And of course we also have the case of Toombs versus Fortson which required the reapportionment of our State's Senate. That case is still pending. I do not know why the plaintiff in that case did not appeal to this Court but they asked in their -- in their complaint that both Houses with state legislature be reapportioned according to population. The Court only granted their complaint halfway. That case is still pending and of course if this Court requires to both Houses' legislature be reconstituted at large along population lines, then of course the District Court can move very quickly on that. So we may yet have to -- we don't know what the courts want to determine but it's quite possible, the majority voice in Georgia which we think is already strong is even going to get stronger in the near future. Now, we believe that these considerations are important and if they call for the application of the equitable abstention doctrine called just before a year -- a year and a half ago, Georgia had the -- the majority control in Georgia had no practical opportunities for exerting their will, as far as state government is concerned. Now, in this apparent session of the legislature and of course the appellants made quite some reference to this in their brief. The appellant Wesberry, who is a State Senator, introduced Senate Bill No. 101 for the redistricting of Georgia's congressional districts. But either the gravity of the major coupled with insufficient time of appropriate study, the bill did not pass that session but was referred to the rule Committee of the Senate where it's still pending for further action. The bill is not dead, it did not die in the last session, it's still pending. Now, I doubt here that the bill is going to pass and I will -- will come to that in the next few minutes. Next, Senator Julian Webb introduced Senate Resolution No. 56 for the creation of a Joint Center House Committee to study congressional redistricting which was passed by the Senate but was reported -- unfavored by the House, that bill was not passed. However, this should not end all attempts that reapportioned that session of the General Assembly, stated by the appellants in their brief because Senator Webb then introduced Senate Resolution No. 129 for the authorization of Interim Senate Committee to study congressional redistricting and reported recommendation and study the 1964 regular session of the General Assembly. This resolution was adopted March 15th, 1963.
Arthur J. Goldberg: (Inaudible)
Paul Rodgers: Not yet. Now, in July 1963, the Joint Congressional Redistricting Study Committee was created by the President, and was then appointing -- appointing ten Senators, one from each congressional district and a Speaker of the House appointed ten Representatives, one from each congressional district. Now of course, that was done sooner after this Court noted probable jurisdiction which I believe was in June of 1963. Senator Julian Webb was made Chairman of this Committee. Now we think that's significant because Senator Webb who was working to get reapportioned congressional districts before this Court noted probable jurisdiction, he -- he at that time was working for as the chairman of that Committee so I think that right there is an element which demonstrates the good faith that the General Assembly of Georgia is putting into this effort. Now, it's a matter of common knowledge that the Committee is working in good faith and the Governor of the State is going to support any fair and equitable redistricting plan that's presented. Now, it's interesting to note that appellant Wesberry, now of course he introduced Senate Bill 101. However, he admitted in his statement of September 17, 1963, following the Joint Congressional Redistricting Study Committee. And this is what he had to say about his own bill. He says, “I made it clear and I do not think that Senate Bill 101 should be passed as introduced but that it should undoubtedly drastically changed to meet with the approval of all citizens of Georgia.” And he goes on to say, “I believe it includes some good suggestions and I know it includes some bad ones, so even if the author of the bill admits that the bill was not good, that he'd be drastically and meant it weren't to be passed.” The point is, we do not believe that Georgia -- the General Assembly in Georgia yet have an adequate bill to set or a fair opportunity to redistrict its congressional districts. Now --
Arthur J. Goldberg: Doesn't the grip of this argument leads to the conclusion that (Inaudible)
Paul Rodgers: The only difference we had have with Judge Tuttle's decision on the claim was, first, we believe that just out of considerations of comity, the complaint should be dismissed. Also Judge Tuttle would probably felt like they should go ahead and resolve the ultimate considerations as errors, legal considerations. We feel the consideration of legal issues should be deferred until Georgia has failed to redistrict. In other words, we feel that nothing more should be done at this time than to apply the doctrine of equitable abstention, that the decision of the District Court be affirmed and after a reasonable time, if they're not satisfied they can re-file their case which we feel is required out of considerations of the comity for the workings of our federalism. Now, of course, we won't go into these cases extensively. They are cited in the brief. Of course, this Court long held in its -- and it's frequently applied the doctrine of stating Great Lakes Dredge & Dock Company versus Hoffman which construed and considered the Federal Declaratory Judgments Act which held that the same considerations of equitable abstention applied and appropriate cases applied elsewhere in the area of federal adjudication. And of course we feel the same thing applies here. Now, in one of the previous cases, the -- the Solicitor General as he pointed, “There's no room for the doctrine of equitable abstention in the -- in enforcing rights under the Civil Rights Act.” We feel that that position is fatally fallacious because we feel I would think that any member of this Court can conjure up circumstances where equitable abstention should be applied in the -- in the construction of constitutional rights or in the construction of any federal statute. Also, the Court has recently applied in 1959 in -- in the case of Martin versus Creasy and Harrison versus NAACP, all of which is cited in the brief. It's given other examples there over the application of doctrine of equitable abstention. Now, a valid conception of Baker versus Carr, that Baker versus Carr was an emergency measure that it was -- that Baker versus Carr was an effort to -- to restore the democratic workings of the state legislature that would take and after a great deal of consideration, I believe the case pending here for two years. It was taken after it seemed to me obvious reluctant but as the Court felt that it was faced with no other alternative but intervene this area in order to rescue the workings of democracy in the state legislature. And we think that Justice Clark in his concurring opinion in Baker versus Carr put his finger upon the fundamental point of Baker versus Carr when he stated, “Although I find the Tennessee of apportionment statute offend the Equal Protection Clause, I would not consider intervention by this Court in a so delicate appeal, if there were any other relief available to the people of Tennessee.” But the majority of the people of Tennessee have no practical opportunity for exerting their political way of the problems to correct the existing invidious discrimination. Tennessee has no initiative in referendum. I have searched diligently for other practical opinions present under law, I find none other than through the federal courts. And we think that this case here which involves the second stage area of congression. This should be involved second stage is the far cry from that presented by the first state which is the state legislature. We call to think it's quite clear that the state legislature when they are -- are -- are -- are switched to the control of majority are going to provide the relief that many seek in the area of congressional districting. But we think the restoration of the democratic process has placed Georgia's political destiny in the hands of the majority. Now, the appellants made one allegation there, complained with paragraph 14. We think it was a necessary allegation to their complaint but it's -- it's in fact a -- a very important one to their complaint but which is by virtue of the restructuring of Georgia's political system, has lost all vitality. This is what paragraph 14 of the appellant's complaint state. It's -- and these -- these words right here were written prior to the political restructuring of Georgia, I think in April of 1962. Today, all attempts by the informed civically and militant electorate and arouse public to have the General Assembly to reapportion the congressional election districts so as to move -- so as to more nearly equalize the population has been without itself a contributing, if not be called of this situation is the fact that state legislature has chosen on the basis of state election subdivision inequitably apportioned in a way similar to those with congressional districts. That the issues stating congressional apportionment, thus, so interdependent and interrelated that it is to -- that it is to the interest of the state legislature to perpetuate in equitable apportionment of both state and congressional election districts. Consequently, there are no practical opportunities that the plaintiff and the people of Georgia for exerting their political way proposed. Georgia has no initiative and referendum, so therefore, we say another, a -- a recognition of the point made by Justice Clark and the Court there showed right in the complaint that the solution to this problem is related to the -- to the structure of the state legislature. Now, one other point that we think is particularly good and --
Arthur J. Goldberg: The strength of your argument therefore (Inaudible)
Paul Rodgers: No sir, not at all.
Arthur J. Goldberg: How can you get (Inaudible)
Paul Rodgers: Well, that gets back to the statement we read yesterday from the Senator Wesberry, the papers he filed when the election law -- I mean with the Joint Congressional Study Committee. Senator Wesberry's decision, I think it's a practical one of is, is that the way to solve this redistricting problem as far as he's concerned is to redraw the districting lines around Metropolitan Atlanta, the fifth district. And that if you do that, that would solve the situation. Now, but you see, in -- in redrawing the district lines in that way, that would leave many of your rural districts, either not changed or only slightly altered. And of course with such a system as that, you could I think depend not only upon your -- your metropolitan support in the House of Representatives which is not controlling but it's abstention because of 321 tier and also I think they could stand upon the support of many rural representatives who would I think would have a built-in in Senate to support the plan because they feel like that they could preserve their districting unimpaired or salvages substantial part of -- so I think it's worth serving to your trial on the Court. On top of that, as an overlay on top of that, you have got the prestige and influence of the Governor operating on the House of Representatives. So we feel like that there's a very good chance that the General Assembly is presently constituted going to redistrict. Certainly, it should be tried and of course this Court should certainly assume that a state legislature is in good faith going to perform its duty. And of course, if -- if we should have to reconstitute the House according to our contention is that the General Assembly of Georgia, I believe would constitute now, but if we should have to reconstitute it would make it that much easier. Now, in the -- in the first brief, in the first amicus curiae brief found in Baker versus Carr, the Solicitor General we thought made some very fine comments. This is from the Solicitor General's amicus brief of May 14, 1961, found in Baker versus Carr. And we think the Solicitor General then gave a much better perspective to this situation than he -- than he gave in his present brief. On page 15 of his brief, he state, “Congressional malapportionment is clearly related to reappointment of state legislatures or legislature with full urban representation is unlikely to challenge malapportionment of congressional districts, discriminating against urban vote.” Now, he wanted to emphasize that statement so much, he put it again on page 58 of his brief. On page 51 of his brief, the Solicitor General stated, “In addition, malapportionment state legislatures to the basic calls of congressional malapportionment. Since urban voters are unrepresented in the state legislature, there is little likelihood the legislature will reapportion congressional districts to give urban voters their fair represent -- their fair proportion of representation to Congress. As a result, urban voters are discriminated against both from the Federal House of Representatives and in their own state legislature not have -- and have no remedy in either body.” Now, on page 68, the Solicitor General made a particularly good statement, which I think juxtaposed to this case. It -- the -- there, Solicitor General addressed to himself to the question of whether the state or for the people and other reasonable remedy here would effect that would have upon the action of this Court say in Baker versus Carr, and I assume to any reapportionment case. The Solicitor General answered that question this way, “Even if the malapportionment is gross, it may well not violate the Fourteenth Amendment if the state unlike Tennessee afford its people an alternative remedy. For example, the majority cannot complain too seriously about the underrepresentation of the state legislature in a state which provides for referenda initiated by a reasonable number of voters. Under such a system, the majority can reapportion the legislature itself.” And he goes on to state, “But if the state provides a feasible political remedy, it might be concluded the state has not been so arbitrary as to violate the Fourteenth Amendment.” And I think that brings us to basic philosophic consideration to this Court, although it's unnecessary for this Court to reach that day on these cases but that courts will have to reach eventually, and that is what this Court is going to do in the case that whether majority has control of the state legislature to state political process but through less -- but through lethargy is not exercised in their control. If the Court then you won't go a step further and carry the majority towards its goal or that this Court won't require the majority in the traditional American fashion to carry itself, fall on its own momentum and not stand up on a federal court. That's another consideration which I believe this Court should keep in mind, although it doesn't have to be decided this time. Now, we say we believe it has been restored of the power of political persuasion had been restored to minor -- to the majority in Georgia. And also, we -- we think the record demonstrates very clear that the whole nation is now districted.And this Court would render decision like the appellant Wan. It would come down at early part of next year. You can depend upon the District Courts to quickly apply that decisions in Baker versus Carr and you're going to have redistricting suits across the nation, at large election. It's going to create a traumatic shock on Congress unparalleled in history, whereas to this Court it will abstain to this time the leave their work to reapportioned state legislatures, the correction of congressional districting will come from the position it sought. And of course, this -- it -- it will -- will not be -- it will be a little more gradual, we don't think unduly so than it would be to bring it about by federal or judicial decree. Now, we think that -- that as we -- as we pointed that the remedy is political, we think that the words of Justice Douglas. And (Inaudible) -- the judges on particularly I propose. On page 56, Justice Douglas stated, “Political actions and other method of deciding certain controversies, not all the victories for Human Rights have been won in the courts. In the Western World, more such victories have probably been won in Constitutional Conventions, on legislative halls than in courts of law. The remedy for unwise improvident legislation is I suppose political action is indeed a birth to a remedy for the correction of injustices.” And then Justice Douglas goes on to state on page 56, “Litigation is not the cure or the solution for every conflict. If all our disputes and differences had to go to the courts, we would indeed be bulked down in time-consuming wasteful procedures. The importance of the courts are necessarily low as litigation serves only a limited function. Rule must be left for the workings of other conciliatory, mediating and directive influences.” And then of course that was reechoed, those sentiments were reechoed to a largely inspiring in principle by Justice Douglas in his -- when he wrote to majority's any of the opinion of the court in Williamson versus Lee Optical of Oklahoma. And we feel that in Minersville School District versus Gobitis that Justice Frankfurter also states the principle very well when he said, “Judicial review itself, a limitation on popular government is a fundamental part of our constitutional scheme. But to the legislature, no less than to the court is committed to guardianship of deeply cherished American liberty. Where all of the effective means of inducing political changes left free from interference, education and the abandonment of foolish legislation is itself a training in liberty to fight out the wide use of legislative authority in the form of public opinion and before legislative assembly rather than to transfer of such a contest to the -- to the judicial arena, serve to vindicate the self-confidence of a free people.” So Your Honors, in conclusion, we say that we believe that the appellant misconceived Baker versus Carr. We believe that Baker versus Carr was right in a time of great internal crisis to American Democracy. It was rendered in time where there was no other remedy in Tennessee and the Tennessee Court. Of course the -- in Georgia, the Court -- the state court have not, yet can try. We feel that the legislative remedy is more likely. However, the state courts could afford the remedy because they have Baker versus Carr to guide them. But it was right in the time where in Tennessee, there was no other remedy as it was in the vast majority of the state to this nation. It was an emergency measure, and we feel it meant to be used sparingly. I think that the Court's intention in Baker versus Carr was not try to takeover basically, a classic political or legislative decisions, it was the -- the intention of this court in Baker versus Carr, to try and to get the democratic process restored so that at least that the legislatures themselves could make these decisions. And I don't think the court has any desire to make these decisions. It was designed, we believe, Baker versus Carr was to strengthen the state legislatures and not to weaken it, but it was designed to restore the democratic process, not to impair it. And it was designed to repair the main spring of representative government not to operate it, designed to make the state legislatures and the citizenry of this nation more responsible, not less responsible by casting their obligations on the federal court. I think the appellants -- the appellants, we get as the Declaration of Independence, the Constitution and the Bill of Rights were brought forth by the liberty of bodies and not by a court. They were brought forward by liberty of bodies by militants and arouse citizenry, and that is of course is what kept this country going thus far in its history. And if we're going to preserve this country, we've got to depend to that kind of citizenry and not an advocation to the federal court. We believe that when the government has accepted the majority rules, it is in Georgia and it's clearly as it will be, and if it's not already that -- it's -- that the situation or the solution must be brought about by the citizenry, by letter writing campaigns, by demonstrations, by delegations, by petitions and by other forms of public protests. Otherwise, if you do not leave and otherwise it is implied to clear implication that -- it is that the citizenry is definite on appeal. And we believe that under such circumstances, citizens and particularly State Senators are under a plain obligation to work toward solving their problem to the state legislative process rather than attempt to advocate their responsibility to the federal courts. In Baker versus Carr, this Court slashed the Gordian knot of American politics. This Court guaranteed the majority's rightful place in the state legislatures. In Georgia, the power of political persuasion has been restored to the hands of the majority and we say it's not up to the majority in Georgia to accomplish its goals through conventional political means. In conclusion, Your Honor, we believe that the judgment of the District Court should be affirmed on the grounds of equitable abstention. Thank you for your attention.
Earl Warren: Mr. Cash.
Frank T. Cash: Mr. Chief Justice, Mr. Associate Justices, may I please the Court. Even though we alleged in -- in our notice for appeal, we set forth in our briefs jurisdictional statement and we've argued before this Court that the appellants have been denied their constitutional rights, the state is yet to offer any argument to support the finding of the District Court that the appellants have not been denied their constitutional rights. We would like to assume that we have set forth our case that the appellants have been denied the constitutional rights and will proceed to counter some of the defenses raised by the state in this matter. In the area of the abstention doctrine, certainly it has never been held by this Court that the powers of this Court will be restrained or abstained until such time a law has been enacted. If a person's constitutional rights have been denied, they're entitled to relief here and now. In the case that was before this Court and decision was passed down from this Court in the case of McNeese where Justice Douglas says that the application of the abstention to this suit under the Civil Rights Act would deplete the purpose of Congress to make the federal courts that primary tribunal to grant the relief set forth under that particular case. And we contend that our case is also brought to this Court under the Civil Rights Act, we have been denied Civil Rights as set forth under that Act. I believe counsel for the state was being less than frank to this Court in making statements that the appellants of our suits are the -- the residents of the Fifth Congressional District of Georgia have a powerful voice in their General Assembly. The facts dispute their statement. The people of the Fifth District have 3.4% influence or the vote in the State House, and have approximately 14% in the State Senate. Gentlemen of the Court, this question differs from the cases you've been hearing for the past week. In most of those cases, the question was, “Could a minority control a majority by failing to apportion on an equal population basis?” This case presents somewhat different facts. Here is the case where a -- there's a presumption of course that the minority controls this General Assembly of Georgia. But even if majority controlled it, the people of the Fifth District are a disadvantaged minority. The appellants want relief so that the majority may be represented in the House of Representatives of Congress, but the majority of the State Houses could, in fact the -- but I think the facts show -- present themselves in our brief that the only district in Georgia that is grossly disproportioned to the other districts is the Fifth District. The other nine districts, the other representatives in the State Houses of the other districts have no reason to change this present system. Only the Fifth District has a crying need for relief. So we would suggest that the relief is not available to us in the General Assembly. Certainly, and I -- disadvantaged minority and the voting case has no difference than a disadvantaged minority in a racial or segregation case. And the question of whether they have adequate opportunity to act, in our record, we have shown that the -- a bill was presented in the state legislature in 1952. It was introduced by Representative Albertson from the Fulton County, delegation in that bill of course was defeated without any committee being appointed to study the matter of congressional districting. The Baker versus Carr was decided in May -- excuse me -- in March of 1962. The suit was filed and this case in April 1962. There was no effort by the state legislative body to take any action in the matter at that time, nor did take any action when the decision was handed down. There was a special session of the state legislature to consider the question of state reapportionment. And gentlemen of Court, again, let me emphasize to you that the question of state reapportionment is a much more difficult problem, yet the state body reapportioned the State Senate. 54 senatorial districts, much more difficult problem than the question here of having 10 congressional districts and yet they did it in -- within a -- a month's time. They met -- enacted the law within -- actually within a week, and they had election other that law within a month. There was a, I quote, Reapportioned General Assembly in January of this year. It was a 40-day session, split by 15 days interim between the two sessions, given sufficient opportunity again for the General Assembly to act in this matter.
Potter Stewart: Mr. Cash, under that reapportioned Senate that was done in January this year, was it?
Frank T. Cash: Yes, Your Honor.
Potter Stewart: The State Senate. Does -- does the county in which Atlanta is located, that's Fulton County have representation in the State Senate proportionate to the population of the county?
Frank T. Cash: Yes Your Honor, it does.
Potter Stewart: I wonder --
Frank T. Cash: It has seven Senators based on population in the Senate.
Potter Stewart: And to that extent, paragraph 14 of your complaint in this case is that it should -- should be -- should be modified -- should and I don't mean that there wasn't?
Frank T. Cash: Was that the paragraph --
Potter Stewart: That's the one that --
Frank T. Cash: -- of our brief body.
Potter Stewart: -- was quoted by Mr. Rodgers.
Frank T. Cash: If that -- you recall in that we said that a controlling reason, if not, we did not allege -- absolutely, that was the only reason.
Potter Stewart: You say contributing if not just the cause of this issue.
Frank T. Cash: So it's certainly a contributing cause but it's not the only cause.
Potter Stewart: And then as -- as of the existing reapportioned state legislature that's been attacked in the lawsuit or the -- or the old one -- or the old one before the action of -- of this January that's been attacked in the other lawsuit?
Frank T. Cash: Mr. Justice Stewart, we did not attack the legislature. We attacked a law that's still in effect. We're asking that it would be declared unconstitutional and asking for equitable relief to retrain the enforcement of that law. We're not attacking a -- a -- either the old legislature or the reapportioned, which is alleged and it's in our petition to indicate that as I have said today that the reasons why we couldn't expect relief from “political remedy” that's been suggested.
Potter Stewart: I'm talking now about the other lawsuit in Georgia.
Frank T. Cash: Oh, the Toombs case?
Potter Stewart: That's right.
Frank T. Cash: Yes, that's the same case and in fact, it was filed prior to the reapportion just the judges in the three-judge court in the Toombs cases have been holding pending and I think the final decision of this Court, whether the two Houses have to be reapportioned on the basis of population. But they did require one House under the counsel for the state has stated that the fact that they applied the federal analogy.
Potter Stewart: And then that was done by the Georgia General Assembly.
Frank T. Cash: That was done by the --
Potter Stewart: But it was (Voice Overlap)
Frank T. Cash: Let me emphasize the state assembly has never took the initiative. They did not act at all in the Sanders versus Gray case on the county used them until the decision of this -- not this Court but the lower court. They did not act in the Toombs case until the decision of the Toombs case. They will not act in this case until the decision of this Court.
Arthur J. Goldberg: That though (Inaudible) is that correct?
Frank T. Cash: I think it is.
Arthur J. Goldberg: (Inaudible)
Frank T. Cash: I'm not aware of any -- I think I believe the -- it's closed to maybe the -- the segregation cases of this Court, I think the apportionment cases are met with very favorable response upon the people because after all, we're trying to sustain the rights of the majority.
Arthur J. Goldberg: (Inaudible) within the district or between -- to consider the apportionment of the upper house.
Frank T. Cash: Yes.
Arthur J. Goldberg: You think there are any exceptions to the decision?
Frank T. Cash: In my opinion and I think that's based -- I think the counsel for state would -- would see that, and I think it actually did. I'd like to direct myself to the question of whether this Court ought to go ahead and act in the premises now and not wait until a fuller time has been given to the state to act. It seems that the best reason that the appellants can set forth, why they're entitle to a decision now, has been set forth by Judge Bell in both the Sanders versus Gray case and also in -- in the lower court of this -- in this -- in the court's opinion below in this matter. First is that in the Sanders versus Gray case, he said, “Due consideration has been given to delaying the entry of an injunction until the next regular session of the General Assembly in January. But having recognized that the constitutional right of plaintiff, we cannot fail to protect it, nor do we believe the state would want to deny it. And any -- in the lower court of in this matter he said, “The defendants are entitled to their due, a final decision.” We submit that we too are entitled to a final decision. The question presents itself if the present apportionment statute is declared unconstitutional, what is the remedy?Your Honors, the remedy as suggested by this Court in earlier cases, one that would be suggested by the Article I, Section 2 itself would be the at large election. The -- in fact, the judicial remedy of congressional district cases is of course very clear, simple and moderately, namely, that of course the election at large and that the reason for this could be certainly justified and that the ordering of an election at large of defendant state's congressional delegation, can be resolved, it can be at any time that the defendant state chooses to apportion, the state on constitutional -- on a constitutional basis then there would no longer be any reason for an at large election. The Congress -- that would be based upon if -- if every state was required to have an election at large, Congress would still be Congress formed according to Constitution. It would be able to function normally no matter how many Congressmen at large. And the most important, the people of all the states and all of the people of each state would be fully represented. The bylaws, that is the interstate local representation, of course, we don't feel it is the first order importance, certainly not when it's in direct conflict with constitutional rights. And of course, as I said before, it can be regained by -- at the bargain price of redistrict -- redistricting. The most convincing and persuasive argument for this remedy of course is that it is an opportunity to afford everyone equality of representation. The state has raised the question and I think it's a very good question that is, if the relief that we ask for this Court -- of this Court, what would be the result with the make up of Congress? Of course the figure cited by the state demonstrate that the problem of grossly unrepresentative congressional district is national in scope and threatens to undermine the basic principle of equal popular representation which the House of Representation was originally founded. It emphasizes the need for immediate, uniform and a final solution, which only this Court is capable of granting. Your Honors, we respectfully submit that we have set forth a cause of action, we have set forth the facts at the trial, we have had our day in court, we now would like an adjudication of our rights.


William H. Rehnquist: We'll hear argument now in Number 88-334, John S. Lytle v. Household Manufacturing, Inc.-- Ms. Reed.
Judith Reed: Mr. Chief Justice, and may it please the Court: Petitioner John Lytle filed a complaint in Federal district court alleging that he had been fired for racially discriminatory reasons and that the Respondent employer had subsequently retaliated against him for racially discriminatory reasons. Petitioner sued under both 1981 and Title VII. His complaint therefore alleged both legal and equitable claims. He made a timely demand for a jury trial. Notwithstanding the presence of those legal claims, the district court dismissed the Section 1981 claims on reasons that everyone concedes were erroneous and proceeded to trial on the equitable claims, ruling against Petitioner and in favor of Respondent. Respond... Petitioner subsequently attempted to correct that error in the court of appeals. While the court of appeals held that it was error to dismiss the 1981 claims, it found that it was powerless to reverse and remand, for it held that the judge's findings, if not clearly erroneous, could collaterally estop Petitioner from litigating his claims before a jury. Thus, the import of the holding of the court of appeals is that because the district court proceeded to make findings, his original error in denying a jury trial was unreviewable, meaning therefore that orders denying the jury trial are not reviewable after trial.
William H. Rehnquist: Ms. Reed, these were findings in connection, of the sort that are ordinarily made in connection with a bench trial, findings of fact?
Judith Reed: The findings on Title VII. There were findings of fact on whether Title VII had been violated. The issue in this case, then, is at what point a party is entitled to appeal an improper denial of a jury trial. Under the view of the respondent, and apparently in the view of the Fourth Circuit, Petitioner lost his right to appeal that order denying a jury trial on the first day of trial when that demand was extinguished and the bench trial begun. Such a holding has serious consequences for both litigants and the Federal courts, for if a party is in danger of losing his right to a jury trial, he must proceed by mandamus or take an interlocutory appeal. Such an order would now fall within the confines of the Cohen doctrine, addressed by this Court in Lauro Lines v. Chasser and Midland Asphalt. The practice of this Court for well over 100 years, as we discuss in our brief, and that of all other circuits, has been to reverse and remand upon a finding that the denial of the jury trial right was erroneous. What the Fourth Circuit has done, in effect, is to create a new category of interlocutory appeals. Until now, one would have thought, one had a right to appeal that denial at the conclusion of the proceeding. Indeed, if Petitioner had taken an interlocutory appeal, under its prevailing view, it is likely that such an appeal would have been dismissed. Certainly Petitioner could have proceeded by mandamus, but--
William H. Rehnquist: Interlocutory appeal under 1292(b) by certification?
Judith Reed: --Well, either that or because it now fell within the Cohen doctrine, because it would be effectively unreviewable after trial, which is what we say the import of the Fourth Circuit's holding is.
Anthony M. Kennedy: I just want to make sure I under... you said it is likely that it would not have been dismissed?
Judith Reed: I... we believe that under the prevailing view of the law, had he attempted to take an interlocutory appeal, that appeal would probably have been dismissed because it was thought the jury trial orders were not appealable until the conclusion of the trial.
Anthony M. Kennedy: I see.
Judith Reed: Now, Petitioner certainly could have proceeded by mandamus, but he was not required to do so at peril of forfeiting his right to ever appeal the denial of the jury trial. That has simply never been the law. Now, the court of appeals did this under an erroneous view of collateral estoppel. Now, collateral estoppel is not like law of the case, which is used to maintain consistency during the proceedings of a single case. Collateral estoppel is not applicable in the course of a single proceeding. It is certainly not applicable on direct appeal. The Fourth Circuit's use of collateral estoppel on direct appeal to preclude review of an obviously erroneous order is simply unprecedented. Now, collateral, by its terms, would appear to mean a separate proceeding. What the court of appeals seems to have done is some sort of new kind of estoppel that one might appropriately term bootstrap estoppel. Petitioners cannot correct the denial of the jury trial, according to Respondent, because the district court made not one error but two errors. It is a somewhat circular argument. It ends up meaning that two wrongs may make a right, that because the district court proceeded to make findings after his error, Petitioner cannot get review of that. Now the consequence of this ruling is that a party must seek and be granted interlocutory review of all rulings that might possibly infringe on a right to the jury trial. Now that is contrary to the Federal system as we know it, and it would be highly disruptive. It raises the specter of trials being ended before they start, of counsel being required to simply walk out of the court room. And indeed such a rule would not foster the values of repose that collateral estoppel is designed to foster. It would, to the contrary, generate additional litigation, generate additional appeals, because it would force counsel to take protective appeals. Now, Respondents secondly argue that because the court would have directed a verdict for Respondent, a remand in this case is not required. Now, our first response to that is that is not what the court of appeals held in this case. The court of appeals did not hold that no reasonable jury would ever hold for Petitioner, or could ever hold for Petitioner. The court of appeals simply viewed the findings under a sufficiency of the evidence standard. Second, the record shows that there was considerable evidence on the... on both the issues that Petitioner raised to submit this case to a jury. And if the district court could have found for either party there can't be a directed verdict. Now, in our briefs we cite several examples from the record showing why in this record there was sufficient evidence to submit the case to a jury. The court could grant a directed verdict only when no reasonable fact finder could have decided for Petitioner. In the instant case the court decided the issues under Rule 41(b). And under that rule the judge could indeed do what he did. The judge could make rulings on disputed testimony. The judge was free to make inference. The judge was free to decide whom he believed. But not so under Rule 50. In accordance with this Court's decision in Anderson v. Liberty Lobby, the judge was required to allow the jury in this case, had one been empaneled, to weigh the evidence, make inferences and come to a conclusion as to whether or not Petitioner had been discriminated against. And we think that the trial judge indicated that by his own words in the trial transcript, as we point out in our briefs. When Petitioner's counsel recited a view of the evidence that could support Mr. Lytle's claim, the district court responded that that was indeed a reasonable view of the evidence. That single statement, especially coupled with the earlier denial of a summary judgment motion, puts to rest any claim that a directed verdict could have been granted in this case. What was okay under Rule 41(b) for the judge to do, we contend, was... the judge was precluded from doing under Rule 50(a). Accordingly, this Court should reverse the decision of the court of appeals and remand for a jury trial. You... in... indeed, the practical case, the practical issue in this case is when a party is supposed to appeal the wrongful denial of a jury. Now, our position--
Anthony M. Kennedy: Well, in this... in this case the judge didn't rule on the... on the question of the right to jury trial. His ruling, that you claim was error, was that there was no cause of action at all. He didn't rule that there was not a jury trial if there had been a cause of action presented. So this is not really a case in which we must be concerned that the jury trial right will be stifled because judges will erroneously rule that a jury is not required. This is just... there is, the fortuity here is an erroneous ruling of law by assumption. And I don't see how that is much different than having a previous hearing by the SEC.
Judith Reed: --Well, if you are referring to Parklane, it is a very different case, Justice Kennedy. The reason... the sole reason that Petitioner was entitled to a jury trial was because his claim... his complaint raised legal claims, and the 1981 being that claim. The respondents don't pretend to--
Anthony M. Kennedy: But you see my point. The judge didn't err in ruling that the seventh... in ruling on the scope of the Seventh Amendment.
Judith Reed: --The judge... we contend the judge erred, and indeed all parties agree that the district judge erred in dismissing the 1981 claims. The 1981 claims were what brought into play the right to a jury trial. By dismissing that claim and the judge then saying we will not have a jury; we will now proceed to trial in front of the bench, that is... is the denial of the jury trial. It seems to me that it begs the question to decide that there wasn't explicitly an order striking a demand, as opposed to dismissing a claim, because it... you still are left with a category of cases barring direct review of an erroneous decision of the district court. Now, we contend that in this case there is one single, very important practical issue, and that is when is a party supposed to appeal the wrongful denial of a jury. Now, our position is clear. Plaintiff or defendant, if aggrieved by the grant or denial of a jury trial, can appeal that order at the end of trial, no matter what the reason for the order. Now we don't understand what Respondent's position is--
William H. Rehnquist: You mean you can appeal, you can appeal from the judgment entered against you and assign that as a ground of error.
Judith Reed: --Absolutely.
William H. Rehnquist: Yes.
Judith Reed: That would be our position, that after the conclusion, after final judgment was entered on direct appeal, you could appeal any of the errors that you contend were made, including the error denying the jury trial. Now, we have raised that issue in our briefs, and Respondent has not answered that question. And we don't understand exactly what Respondent's position is. I would like to reserve the remainder of my time for rebuttal.
William H. Rehnquist: Thank you, Ms. Reed. Mr. Dennard.
H. Lane Dennard, Jr.: Mr. Chief Justice, and may it please the Court: We may disagree with some of what the petitioner said about the background facts in the case, but we don't believe there is any disagreement about what Mr. Lytle's claims are, and we feel that the claims themselves are important for the Court's initial consideration. Mr. Lytle claims that he was discriminated against because of his race when he was terminated for violating the company's rule on unexcused absences. He next... in other words, he claims the discriminatory application of a company rule or policy. Next, Mr. Lytle claims that he was retaliated against or discriminated against because he filed an EEOC charge when the company gave out references to perspective employers that included only the job title and length of employment. Again, we are talking about the discriminatory application of a company policy, and in this instance the alleged basis of discrimination is the fact that Mr. Lytle filed an EEOC charge. From the very start of this case Schwitzer has taken the position that both claims, retaliation claim and the discharge claim under Section 1981, should be dismissed because Title VII covers this conduct. This is an... important for the Court to consider initially because the Court can avoid the constitutional issue that is urged by the Petitioner by considering the application of this Court's decision last term in Patterson to this case.
Byron R. White: This is a ground that you think you are entitled to press as a respondent?
H. Lane Dennard, Jr.: We do, Your Honor, because we feel like we have raised the issue below, and that's what we intend to argue, and that--
Byron R. White: But you, did you--
H. Lane Dennard, Jr.: --certainly records adequately developed--
Byron R. White: --Have you cross-petitioned?
H. Lane Dennard, Jr.: --No, Your Honor.
Byron R. White: Well, isn't this different relief than you... than you got below?
H. Lane Dennard, Jr.: Well, this is... of course Patterson was decided after that, but it is our position that we adequately... raised these issues, as far as the coverage of Section 1981, so that we can make this argument at this stage.
William H. Rehnquist: You argued it before the Fourth Circuit?
H. Lane Dennard, Jr.: We argued before the Fourth Circuit and in the district court that... that the retaliation claim... it's a little bit different argument with both claims. But with the retaliation argument, we specifically argued that Section 1981 does not cover retaliation.
Byron R. White: Well, had Patterson been decided then?
H. Lane Dennard, Jr.: Patterson hadn't been decided then.
Byron R. White: But you nevertheless were arguing that point?
H. Lane Dennard, Jr.: We were arguing the point, and what our position here today is is that we have developed the record on that and that we have adequately raised Pat... the issues that are covered by Patterson--
Byron R. White: And the court of appeals rejected that.
H. Lane Dennard, Jr.: --Well, the court of appeals did not rule on that. They ruled on another grounds, but they did not specifically reject that, Your Honor. They... I think they mention in the decision that they will not rule on the other grounds that were presented by both sides.
Antonin Scalia: Would the relief you get under... under your Patterson theory be precisely the same as the relief that you are seeking to defend?
H. Lane Dennard, Jr.: That's... well, the relief from the standpoint of Section 1981 not covering discharge and retaliation would be the same.
Byron R. White: Well, what was... the court of appeals ruled on collateral estoppel, didn't it?
H. Lane Dennard, Jr.: That is correct.
Byron R. White: Well, that certainly is different than saying 1981 doesn't cover this.
H. Lane Dennard, Jr.: Well, we would contend, Your Honor, that as--
Byron R. White: It may be in result... it may be in result that you, that there just isn't any 1981 claim for one reason or another. But it isn't the same reason.
H. Lane Dennard, Jr.: --Well, we would contend, Your Honor, that as an appellee we would have the right to defend on any matter that was raised in the record.
Byron R. White: As long as it doesn't give you more relief than you would have had.
H. Lane Dennard, Jr.: Well, I think the relief would be the same. I mean, we are talking about--
Byron R. White: All right. So, yeah.
H. Lane Dennard, Jr.: --The additional... the additional point is that... this consideration of an appellee relying on matters that are developed in the record, or raised in the record, is even stronger when there is an intervening decision like the Patterson case.
Thurgood Marshall: Wouldn't you have to amend to get under Patterson?
H. Lane Dennard, Jr.: Amend? I don't understand.
Thurgood Marshall: Your pleadings, your original pleadings. Realize that the case was before Patterson.
H. Lane Dennard, Jr.: Well, we feel that we would have a right to present the issue at this point in time to the Supreme Court because we've raised the issue below and because the record is adequately developed to consider it, without any amendment.
Thurgood Marshall: But you didn't raise the Patterson issue.
H. Lane Dennard, Jr.: Well, we didn't raise the Patterson issue--
Thurgood Marshall: xxx.
H. Lane Dennard, Jr.: --per se.
Thurgood Marshall: I see. But just the same.
H. Lane Dennard, Jr.: But we took the position that Section 1981 could not be added to Title VII claims in this case for both discharge and retaliation, and the Section 1981 claims were dismissed based on that argument.
William H. Rehnquist: The certiorari papers in this case were filed before we heard and decided Patterson on rehearing, weren't they?
H. Lane Dennard, Jr.: That is correct. Given the status that we're... of the record that we have, we feel that we stand in a better situation than someone simply arguing the retroactive application of Patterson, although I think it's clear that Patterson should apply retroactively, because... and that has been the majority... that has been the result in the big majority of cases that have considered it in the lower courts. The Sixth, the Seventh, the Ninth and the Eleventh Circuits have all applied Patterson retroactively to pending claims at this point in time. We cite the Ninth Circuit or the Seventh Circuit and the Ninth Circuit opinion in our brief, and the Eleventh Circuit decision in McGinnis v. Ingrahm Equipment Company is at 888 F. 2d at 111, considered the application of Patterson to a pending case and considered the plaintiff's argument in that case that Patterson couldn't be raised because it hadn't been perfected on appeal. And the Eleventh Circuit concluded that Patterson would have to be considered because it actually restricted the subject matter of the court to consider claims under Section 1981.
William H. Rehnquist: We granted certiorari on the question of whether the violation of the Seventh Amendment was... at what time it should be reviewed on the question presented by the petitioner's question. And if you are asking us to decide the case on a ground... kind of an alternative basis to what the court of appeals decided it on, you really have to show us some reason why we ought not to reach that question, don't you?
H. Lane Dennard, Jr.: Well, the point... the reason not to reach that question is because it, you have to consider a constitutional question there.
William H. Rehnquist: What is the constitutional question?
H. Lane Dennard, Jr.: The constitutional question is the Seventh Amendment right to a jury trial. That's... the question that was presented in the petition for certiorari, it was... that's the way it was grounded.
William H. Rehnquist: But I... the Seventh Amendment, obviously, is a provision of the Constitution, and it guarantees the right to jury trial in a civil case. But what we are talking about here is how a decision claimed to have wrongfully denied that right should be reviewed, and collateral estoppel, and that's... now, those aren't necessarily constitutional questions.
H. Lane Dennard, Jr.: Well, that is the view that we've taken, and that's the grounds for the Court considering. And of course the other basis is because we feel like we have raised the issue and the record is adequately developed so that we can have the issue considered under... under those principles.
Byron R. White: Well, was there ever a denial of the motion for new trial, in so many words? I mean, for a jury trial, in so many words?
H. Lane Dennard, Jr.: There was... what there was--
Byron R. White: All there was was a dismissal.
H. Lane Dennard, Jr.: --a dismissal of the Section 1981 claim, which carried with it the right to a jury trial.
William H. Rehnquist: Even if you are right about the, this being a constitutional claim that the petitioner has raised, I don't think that the avoidance of constitutional claims is something that we pay much attention to and a question where we have granted certiorari on the question. We could grant certiorari on a very important constitutional question that we think there is a conflict in the circuits on that needs decided. The respondent could come in and say well, look, you could decide this on a statutory ground. Our answer in the past has been we don't want to. We choose to decide the case, if we can, on the basis that the petitioner has presented.
H. Lane Dennard, Jr.: Well, we have the additional course, Your Honor, we feel like we have developed the issue and that the... the record is adequately developed. And as an appellee we have a right to present those grounds.
William H. Rehnquist: You certainly have a right to present them. But you do have some burden, I think, to persuade us that we ought to go that way and more or less abandon the question which we granted certiorari.
H. Lane Dennard, Jr.: Well, the additional basis would be the argument that we have with the avoidance of deciding the... a question with constitutional dimensions to it.
Sandra Day O'Connor: Mr. Dennard, the petitioner argues in a brief that he was wrongfully denied a promotion, discriminatorily denied. Now, would that survive Patterson as a Section 1981 claim?
H. Lane Dennard, Jr.: Under... of course, under the reasoning in Patterson, some promotion decisions would be subject to coverage. But I don't think the promotion issue has really been preserved up the line. In Patterson the Court really considered the question of the overlap coverage between Section 1981 and Title VII and concluded that there could be a rational, common sense interpretation of the language of Section 1981 to make and enforce contracts that would yield an interpretation that wouldn't frustrate the congressional objective to the preference of conciliation over litigation in Title VII cases. And with the... they looked at the... the court looked at the terminology to make and enforce contracts, and to make a contract extends only to the formation of a contract, and not to subsequent conduct, like the... even if it amounts to the breach of a contract or the imposition of discriminatory working conditions. The right to enforce contracts, on the other hand, would extend to the legal process and protection of the legal process. So our position on the Patterson case would be that we would urge the Court to apply Patterson in this case to uphold the dismissal of both the retaliation and the discharge claims, because this is post-formation conduct. The discharge is obviously post-formation conduct. It actually involves the discriminatory application of rules. It's very analogous to the situation in Patterson where we were talking about alleged discriminatory working conditions, harassment, sweeping the floor and this type thing.
Sandra Day O'Connor: I wonder if it wouldn't be advisable to let that question, the extent to which Patterson governs these particular claims, go back to the lower courts in the first instance and just deal with the question we thought we were going to deal with on certiorari.
H. Lane Dennard, Jr.: Well, that... Your Honor, we would say that we feel that we have adequately developed these issues along, that would give us a right to have that considered at this point in time.
Antonin Scalia: I guess your point is that we have no power to reverse the lower court and to remand it, if... if in fact the Patterson issue should be resolved your way.
H. Lane Dennard, Jr.: Well, the... the question of collateral estoppel doesn't even come into play unless you assume that, the error in the case.
Antonin Scalia: We certainly don't have to reach Patterson, you would acknowledge this, if we... if we... we don't have to reach Patterson if we find for you on the other point, on the jury trial point. If we affirm the court of appeals, you would never get to Patterson.
H. Lane Dennard, Jr.: Well, in that situation you would have to consider the constitutional question and consider the--
Byron R. White: Well, but aren't you defending the court of appeals' judgment or not?
H. Lane Dennard, Jr.: --We are. We are.
Antonin Scalia: It seems to me you have two points, and you are not... you are not separating them. Your one point is that we ought to take the Patterson issue first. And that seems to have met some... some resistance. Your... you have a second point, though, don't you, and that is if we don't take the Patterson issue first, and find against you, then we must take the Patterson issue, because we have no basis for reversing the court of appeals.
H. Lane Dennard, Jr.: I believe that's correct, Your Honor.
John Paul Stevens: Let me just test that out. You mean we don't have the power to reverse and send it back and say take a look at this issue? Is that what you're saying? That if we reverse them on the only thing we granted cert. to decide, and we decide you are wrong there, we could not send the court case back to the court of appeals and say take a good hard look at the Patterson issue? You don't think we have power to do that?
H. Lane Dennard, Jr.: I believe you have power to do that. If the Court does consider the... if the Court does consider the collateral estoppel issue, or if it is addressed, we urge the Court to uphold the Fourth Circuit's decision that Mr. Lytle was collaterally estopped from relitigating issues under his Section 1981 claim. And reaching the result that the Fourth Circuit reached, they relied on an earlier decision, in that case in Ritter v. Saint Mary's College. And in that case there had been dismissal of age discrimination act and equal pay claims that were combined with Title VII claims, and this is the decision. The Ritter decision really contains the rationale that the Fourth Circuit has for applying collateral estoppel. The Fourth Circuit looked at the conflict that was involved, on the one hand the denial of the plaintiff's right to have his issues relitigated before the jury, and on the other hand the policy as to underlying collateral estoppel, the economic... economical resolution of cases, and concluded that Park... this Court's decision in Parklane Hosiery had already tipped the scales in favor of applying collateral estoppel--
John Paul Stevens: xxx this 1981 suit and the court, for some reason or another, denied a jury trial and then tried the 1981 suit itself.
H. Lane Dennard, Jr.: --That would... we would submit that would be a different situation, Your Honor.
Byron R. White: Well, but then on appeal the--
H. Lane Dennard, Jr.: On appeal then that could be reversed, but that is not our situation.
Byron R. White: --Why isn't it?
H. Lane Dennard, Jr.: Because our situation is the situation where you have Section 1981 claims combined with Title VII claims. The Section 1981 claims were dismissed. There is a good-faith dismissal of those claims. And the courts, faced with Title VII--
Byron R. White: Well, you don't claim that the... you don't claim that the correctness of the dismissal of the 1981 suit wasn't appealable?
H. Lane Dennard, Jr.: --We don't claim; we realize that--
Byron R. White: That is reviewable in that case... in this case. It was reviewable in the court of appeals.
H. Lane Dennard, Jr.: --That is correct.
Byron R. White: And it was all part of one suit.
H. Lane Dennard, Jr.: But it's still a different situation--
Byron R. White: It isn't... wasn't two different suits, though, was it?
H. Lane Dennard, Jr.: --No, not two different suits, but it is--
William H. Rehnquist: And Parklane was two different suits, wasn't it?
H. Lane Dennard, Jr.: --Parklane was two different suits. And the Fourth Circuit looked at that, and that was of course the argument that the plaintiff made in the Ritter case, that this was different because there is a separate suit involved. And the Fourth Circuit reasoned that the separate suit really didn't make a difference because that was just because collateral estoppel [inaudible]--
Byron R. White: But you say because there were two... because there were two counts in the... two counts in this complaint, collateral estoppel applies, whereas if it had just been a 1981 suit which was lost, then--
H. Lane Dennard, Jr.: --If it was just a 1981 suit and the court proceeded to just try that case before the court, without a jury trial, then that would be a direct violation of the right to a jury trial, and it would be subject to--
Byron R. White: --Well, I know, but in the court of appeals the court says well, we agree, the trial judge arrived at exactly the right conclusions on the facts of the case, but we have to reverse. There is no collateral, no estoppel, because it should have been tried by a jury.
H. Lane Dennard, Jr.: --Well, that's the only... the distinction we have is that we have two different claims involved. And in our case it is not a situation where there is a direct denial or trying of an issue before the court that should be considered by the jury. It was a situation where the legal claims were dismissed and they were... there were pending equitable claims remaining that, under Title VII, that required the court to proceed with a bench trial. In the separate suit type argument, too, another point to make would be that Parklane specifically recognized that the major premise with Beacon Theatres is that... is a rule that unless legal claims are tried first, prior to equitable claims, then the judge's factual findings on the equitable claims would collaterally estop the jury's redetermination of these issues. And the two quotes that we would like to point out, or two portions of the opinion in Parklane that establish that... this premise is established by the following language that is in Parklane at page 334. Recognition that an equitable determination could have collateral estoppel effect in a subsequent legal action was the major premise of this Court's decision in Beacon Theatres. And then quoting the Court's earlier decision in Katchen v. Landy, both Beacon Theatres and Dairy Queen recognize that there may be situations in which the court could proceed to resolve the equitable claims first, even though... even though the results may be dispositive of the issues involved in the legal claims. So certainly Parklane and Katchen establish that Beacon Theatres rule that normally equitable or legal claims should be tried first as a general prudential rule, and that an equitable determination can have collateral estoppel effect in subsequent legal proceeding--
Byron R. White: Do you think that would be the routine result if... suppose the trial judge here said... said well, I think you state a good cause of action in both 1981 and 19... and Title VII. I am going to try the Title VII claims first.
H. Lane Dennard, Jr.: --Well, that wouldn't be our case.
Byron R. White: Well, I know, but what if, what if he had said that? It violates Beacon, doesn't it?
H. Lane Dennard, Jr.: I believe it would.
Byron R. White: Then it would not be collateral estoppel.
H. Lane Dennard, Jr.: Because it violated the Beacon principle. But that's not our situation, the distinction that we have. We are not a situation in which there is a direct violation of the right to jury trial, that... we have a situation where the district court judge made a good-faith dismissal of legal claims and was faced with a statute that required the court's determination before the bench.
William H. Rehnquist: Well, what do you mean by a good-faith dismissal? I would assume that most... in fact I can... it is hard to conceive of a district court dismissing an action. Even though it's erroneous, it was not done in good faith.
H. Lane Dennard, Jr.: Well, the Petitioner claims, I think, that the judges, district court judges, would be inclined to dismiss legal claims based on administrative and personal convenience, which we're distinguishing it certainly from that situation.
Antonin Scalia: You're really arguing for something of an extension of that language in Parklane. That language just says that there are some situations where you can try the equitable claim first. You are not arguing that this is such a situation. But you are saying where it has been mistakenly tried first, the same philosophy that says there are some practicalities that sometimes make it triable first also dictate that that's water over the dam, that it was mistakenly tried first and we will give it collateral estoppel effects.
H. Lane Dennard, Jr.: That is correct.
Antonin Scalia: But that is an extension of Parklane, of even the dictum in Parklane.
H. Lane Dennard, Jr.: Well, we agree that it is not, you know, directly within Parklane, that it's... but within the rationale of Parklane. From the standpoint of the harm involved, though, I mean, the defendants in Parklane were denied the right to a jury trial, the same as we have in our situation. To summarize the argument or conclude--
Antonin Scalia: The only thing that makes that... that argument difficult is... and the Court keeps pressing you on this... I don't see why it wouldn't be just as true if the lower court erroneously denied a jury trial. You... surely you would be able to say the same thing. You know, well, yeah, they should have done it first, but, as Parklane shows, we do take practical considerations into account--
H. Lane Dennard, Jr.: --Well, that would fly right in the face of several decisions that... that [inaudible].
Antonin Scalia: --Well, so did this dismissal, which is why it was reversed.
H. Lane Dennard, Jr.: To conclude on Parklane, our position would be that in Parklane the court found that the defendants had a full and fair opportunity to litigate their claims in the prior lawsuit, and that they were therefore collaterally estopped from relitigating factual issues in a second lawsuit. The court found that this application of collateral estoppel did not violate the Seventh Amendment. Likewise, Mr. Lytle had a full and fair opportunity to litigate his claims in the Title VII proceedings. From the standpoint of looking at the principles of judicial economy, the same principles that applied in Parklane apply here, the dual purpose of protecting litigants from relitigating an identical issue and of promoting judicial economy by preventing needless litigation. To summarize our final argument, it's clear that the Court need not address the collateral estoppel issue if a directed verdict would have been proper, since the dismissal of the 1981 claim in that situation would have constituted harmless error. We realize that the standards are different for a Rule 41(b) motion and that there is some weighing of the evidence that is allowed there, but the standard for directed verdict would include a situation where there is an absence of proof on an issue material to the cause of action. With both the discharge claim and the retaliation claim, the district court judge ruled that the defendant, or the plaintiff did not establish a prima facie case.
William H. Rehnquist: But, under Rule 41, the trier of fact is entitled to weigh the credibility of the witnesses and make those sort of determinations that the trier isn't entitled to make under Rule 50, isn't it?
H. Lane Dennard, Jr.: We recognize that there is a difference in those standards, and... but our position would be that... that we met the directed verdict standard in... by what the judge really did. He ruled that as a matter of law the plaintiff did not establish a prima facie case in either situation.
William H. Rehnquist: Well, this was after a bench trial on the Title VII action?
H. Lane Dennard, Jr.: That's correct.
William H. Rehnquist: Well, why, why would a district court be saying that as a matter of law?
H. Lane Dennard, Jr.: Well, he didn't... the district court didn't say that, Your Honor, we say--
William H. Rehnquist: That's the kind of--
H. Lane Dennard, Jr.: --that the evidence that was presented would meet that standard.
William H. Rehnquist: --Well, but you... the district court wasn't engaged in that sort of an inquiry, was it?
H. Lane Dennard, Jr.: That is correct.
William H. Rehnquist: So you are asking us now to reweigh the evidence and to... or to weigh the evidence, decide that you should have gotten a motion for a... for dismissal or summary judgment?
H. Lane Dennard, Jr.: Well that, you know, even the circuits courts, like Hussein, that apply the opposite rule in this situation, would look at the evidence to determine if it would have in fact gone to the jury. And that is what we are asking--
William H. Rehnquist: But we don't ordinarily make that sort of determination here. Did the court of appeals make that determination?
H. Lane Dennard, Jr.: --No. No, sir. Unless there are further questions, that concludes my argument.
William H. Rehnquist: Thank you, Mr. Dennard. Ms. Reed, you have 18 minutes remaining.
Judith Reed: Respondent urges that this Court avoid a constitutional issue by deciding on the Patterson grounds. Now, on that matter we agree with the Chief Justice on this question. Whether an ordinary collateral estoppel rule will prevail and a determination as to when a petitioner may appeal the denial... the wrongful denial of a jury trial, does not depend on the... the fact that the jury trial right stems from the Constitution. The issue would be the same whether it was a statutory right to a jury trial or that it came from the Seventh Amendment. We think this Court... this question is important, and the Court ought to decide the issue upon which it granted cert.-- There is the conflict, as the Court recognized, between the Fourth Circuit and the Seventh Circuit on this issue.
Antonin Scalia: Excuse me, you wouldn't feel free to argue if we came out the wrong way on the jury trial thing, that by denying you either interlocutory appeal or vindication here we have denied you your constitutional right to a jury trial? You don't think that that constitutional right is involved?
Judith Reed: Well, oh... the constitutional right to a jury trial is implicated here. My point is that the... the decision that this Court must make as to the collateral estoppel issue doesn't turn on that. We believe that--
Antonin Scalia: Well, no... I mean, suppose we said collateral estoppel is perfectly fine. Wouldn't we... as a matter of statutory law and common law, wouldn't we then have to say but, in this area of the Sixth Amendment, isn't there some special restriction upon it? I mean, I am just not sure I agree with you that you can possibly avoid saying that we have to ultimately say would it violate the Sixth Amendment for us to apply collateral estoppel here.
Judith Reed: --Well, I think what the court did constitutes a violation of the Seventh Amendment, don't get me wrong. However, the issue of when a party gets to appeal a wrongful denial does not turn on whether the, the jury trial right stems from the Constitution. So the... I don't think you... the necessity for avoidance of a constitutional... deciding on a constitutional issue is really implicated here. Now, there are... Respondents state that they argued below the same thing that they raise here, that is that retaliation is not covered under 1981, for the grounds that are set forth in Patterson perhaps. The argument they made below was a very different one. Now, we don't deny that they can get to raise the Patterson questions on remand. We think that would be entirely appropriate and that that is what should occur. This record is not in the condition for this Court to resolve the Patterson question. What Patterson means is that there are fact-specific issues that would be appropriately redressed, addressed on remand, including retroactivity and including whether discharge and retaliation are within the scope. As Justice White pointed out, if we had by-passed Title VII and sued only under Section 1981, Respondent would concede that the denial of a jury trial would have been reversible error. We don't think the Court should adopt a collateral estoppel rule that encourages or perhaps even requires a by-passing of Title VII remedies. Finally, Respondents urge that no remand is necessary because of the directed verdict possibility. Now, certainly on remand, whether a directed verdict is appropriate can also be considered. In closing, I would like to state that indeed the Patterson issues are relevant now and they may be raised by both parties on remand, and we would urge that this Court reverse the Fourth Circuit's ruling and remand this case.
William H. Rehnquist: Thank you, Ms. Reed.
Judith Reed: Thank you.
William H. Rehnquist: The case is submitted.