Earl Warren: You may proceed Mr. --
Joseph Forer: Thank you, Your Honor. I had just made the argument that the California decision violates the policy of the National Labor Relations Act because it says that certain employees, namely, employees who were Communist may not have the protection of a collective-bargaining agreement or the protection of the union benefits. Where as, of course, the Act doesn't exclude those employees from those benefits. Now the N.A.M. brief has raised the point of which neither the petitioner nor the respondent had briefed in their brief that if that is the case, then, they say it may will be that the arbitration award to its void for lack of jurisdiction and that the whole case was within the exclusive jurisdiction of the National Labor Relations Board relying on the Garner case. That's the big subject in itself which has not been briefed by either side if he desires a brief on that subject, we will, of course, be glad to supply it. But I think it -- it may be enough if I just point out the following factors, showing that the Garner rule doesn't apply here. In the first place, the arbitration procedure could stand or has an independent ground of jurisdiction other than the question of discharge for union membership and that is because one of the issues was whether the discharge was not for just cause. In the second place, the limitations on state and events with regards to picketing or strike activity or secondary boycott activity shouldn't and don't apply to oust state remedies for violations of a collective-bargaining contract. On the contrary, that would frustrate the purpose of the National Labor Relations Act. The fundamental purpose of the Act is to promote collective-bargaining which, if it is successful, culminates in a contract. Now, if this contract then can't be enforced by the ordinary remedy, then, this purpose is largely frustrated. And in fact, it is standard union company dealings that when you do have a contract, it is customary to have the provisions against discharges without just cause and discharges for union activities. As a matter of fact, the conference report on the Taft-Hartley Act says and I'm quoting now, “Once parties have made a collective-bargaining contract, the enforcement of that contract should be left to the usual processes of the law and not to the National Labor Relations Board.” And if you look at Section 203 (d) of the Taft-Hartley Act, that's the section dealing with the Federal Mediation Service, there's an expressed statement that adjustment of labor disputes by a method agreed upon by the parties is the desirable method for settling grievance disputes. And again Congress showed their intention to have traditional contractual remedies applied through the courts. Once the collective-bargaining contract had been entered into by expanding a federal court jurisdiction so as to permit suits against labor unions under Section 301 of the Act without regard to diversity and not the controversy and so forth. In other words, the Act shows that there is a policy of the Act in favor of utilizing traditional state remedies, traditional judicial remedies for enforcement of collective-bargaining agreement. And as a matter of fact, recognizing this fact, the Labor Board itself has established a policy of refusing the process cases involving alleged discharges for union activity where there is a collective-bargaining contract with a binding arbitration procedure available as there was here, so that the alleged discharged union activity could be arbitrated. As I say we haven't briefed this. I would therefore like to cite a note which does cover the subject and does give the -- the Labor Board decisions that I have just referred to. It's a note that 69 Harvard Law Review beginning at page 725. Now there is one other respect in which the California decision engaged a federally occupied field. The Internal Security Act, the constitutionality of which among other things is now pending and -- and it's under consideration by this Court as the Court is aware. That Act prohibits members of a Communist action organization from holding employment in defense facilities designated by the Secretary of Defense. Now the California court has gone beyond that Act and it has excluded Communist from employment in nondefense facility. But if there's a greater conflict and inconsistency than that, in the Internal Security Act, Congress expressly provided that the employment exclusion sanction should be withheld until the registration order of the Board against the Communist Party became final by affirmance by this Court if this Court have does affirmed it. And it allowed an escape opportunity for a member of the Communist Party to get out of the employment sanction by leaving the Communist Party. But it was very careful to allow this state opportunity to exist after all judicial review had been exhausted in the Communist Party case. Now, the Court may remember that that fact, the fact that there was an escape opportunity allowed after all judicial review was exhausted, was relied on very heavily in the oral argument in the Communist Party case. Why the Solicitor General as saying that this preserves the constitutionality of the Act because it means that a Communist without guilty knowledge are in subject to the employment sanction of the Act. But the California court, in this decision, purporting to apply a policy which it derived in part from the Internal Security Act has applied the employment sanction without allowing that opportunity for escape because that opportunity for escape after this Court affirms if it does, still hasn't arisen. And this particular plant, Cutter Laboratories, for all anybody knows, may or may not be eventually be designated as a defense facility by the Secretary of Defense. That the Secretary of Defense simply has not designated it. So far as I am aware, the list of defense facilities from which members of Communist action organization are excluded by virtue of the Internal Security Act.
Earl Warren: Mr. Johnson.
Gardiner Johnson: Mr. Chief Justice and members of the Court. In the presentation of the case for the respondent, I shall devote my portion of the time of the subject to the order of the Court in discussing primarily the factual situation and my colleague Mr. Stanton will discuss some of the legal questions. I might say we are familiar with the Court's attitude on divided argument and I hope that I consider the Court that I am prepared to discuss any legal questions that might arise, but a unique situation has been presented here, we think, has disclosed by petitioners argument. Because as they have pointed out with differences here between the parties are primarily, I'm careful to say primarily, differences as to the facts and the findings rather than as to the law. I want to be clear. We do not agree with many of the statements that we believe to be enthusiastic statements by counsel on what the decisions have held, but we do not differ in the name with the legal principles that he has stated. We simply say that he is talking about another case and not the one that was tried on the arbitration proceedings in the Sir Francis Drake Hotel in San Francisco, not the one that the arbitrators decided, not the case of the California Supreme Court has decided. But again, I would be clear, our position is not that he argues the facts to the contrary. As we view the record, they walk around them. They don't dispute the facts that supported the arbitrators award. They don't even mentioned them. They blatantly ignore them and then having done so, they say they don't exist. Rather than arguing myself, I would turn to their brief and demonstrate what I mean by a couple of references and I hope where he pointed once. For instance in the beginning, at page 6 of -- of their brief, they discuss this question of the facts and here is what they say. This is the -- the green brief. In the middle of the page, we assume that this Court, likewise, will not review the merits of the factual findings of the arbitrators or have they stop there, we would agree. But in the same breath, having said they are not going to argue the factual findings, they go on with this astonishing statement. However, the majority of the court below in vacating the arbitrator's award, apparently treated certain language. I emphasis that. Certain language of the arbitrators as a finding that the discharged employee was personally dedicated to sabotage force, violence, and the like. A conclusion which distorts the actual holding of the arbitrators and which is entirely without evidentiary support. Now may I point out that they choose from that point on to call the finding which was read and I think Mr. Justice Frankfurter asked, “What are you quoting from?” They choose from this point on to call it not a finding but in their language certain evidence. I submit to the Court and -- and welcome a careful checking of the record that if that portion was read, if that is not a finding, then, there are no findings in this case either by the arbitration board or by the Supreme Court of California. It was clearly a finding that because counsel to -- to argue the legal points that they make here must build a false structure. They don't call it a finding, they call it a certain language. They do so again on page 26 and page 27. Basically the same point, it's right under subsection (h), and I think it's worth quoting because it points out better than my argument can and this is what their position is. This is it. We pointed out above that the findings of the arbitrators, they call them findings there and the evidence in the record strongly negate any notion that the arbitrators regarded Mrs. Walker as in any case a sabotage risk. Now let me stop there and say, as you will note carefully that they call it findings and they call it evidence in the record when they say that it negates any finding that she was committed to sabotage. But if you will please follow me, they then go on in the next sentence and say, indeed, the very award itself ordering her reinstatement to her previous job is the best evidence of the lack of any such belief from the arbitrators' part, and then the astounding thing is, they proceed immediately to quote it and it says exactly what they said it doesn't say. Because they go on and say and now they are on our side so they come back to certain language instead of findings. They say, however, certain language used in the arbitration decision is erroneously treated by the company and apparently by the court below as a finding the Mrs. Walker was personally dedicated to sabotage force, violence, and the like. And because it is vital, may I reread it and point out that I am not reading from the minority arbitrators award as filed by Mr. (Inaudible) who dissented, “I am not arguing anything based on his finding because I take it I am completely precluded from that, although, they don't grant the same respect to the California Supreme Court. I am taking the minority award and here is specifically what they said as it is set forth in the award which is found in the front of the transcript at page 29 and I'm going to read it from the transcript rather from the brief. Beginning at the top of the page. And now, may I call the Court's attention the fact that having stated certain preliminary introductory subjects, the arbitrators are now in subjects numbered first, second and so on, and obviously, these are the findings and this is the statement. The company maintains that the basis for the discharge was two-fold as goes to Mr. Justice Reed's question, two fold, the emissions and falsification on the application for employment and membership on the Communist Party with the full implications of dedication to sabotage force violence and the like which party membership is believe to entail. And here is the conclusion. The finding that the company honestly believe all of these things as admitted and the accuracy of those beliefs as established in the record as follows by admission with respect to the emissions and falsifications on the application for employment by undenied and uncontradicted evidence with respect to the membership and the party -- Communist Party and by uncontradicted evidence, that the company's beliefs about the full implications of party membership were prevalently understood and is shared. In this view of the record and we take this view, we are unable to find that the company has been denied a fair hearing by reason of our refusal to instruct Doris Walker to answer questions put to her touching this issue. They seem to assume that that is to be shrug off and disregarded. They call it not a finding but certain language.
Felix Frankfurter: Is the question that was put to her, was there a question or was there a question that sought to elicit what in fact her activities were --
Gardiner Johnson: Yes.
Felix Frankfurter: -- or desires to be (Inaudible) --
Gardiner Johnson: Yes, I say that there were, Mr. Justice Frankfurter, and I have that coming very carefully worked out here because that has not been developed at all.
Hugo L. Black: May I ask you about that finding? It's your position or is there any other finding which relates to this subject? It's all in the findings except what you read?
Gardiner Johnson: Not in the award of the arbitrators, Your Honor.
Hugo L. Black: Is it your position at that vast concept of uncontradicted evidence (Inaudible) whole implication of party membership is permanently understood in theory. That then permanently understood and shared by her and that she was dedicated to those questions?
Gardiner Johnson: It is my --
Hugo L. Black: Is that -- is that your implication?
Gardiner Johnson: It is my -- it is my implication from that finding as it is stated in its entirety that the arbitration board found expressly that she was a member of the Communist Party and in addition that she was committed to its full program of sabotage violence force and the like, that is correct.
Hugo L. Black: Do you think that's -- this is the only place (Voice Overlap) --
Gardiner Johnson: That is right and may I say that the --
Hugo L. Black: Is that -- is that argued to the arbitrator that she was dedicated to that?
Gardiner Johnson: Indeed it was.
Hugo L. Black: (Inaudible)
Gardiner Johnson: We took the --
Hugo L. Black: -- which expressly stated it and settled in this rather being a fact?
Gardiner Johnson: I would say this, Mr. Justice Black, that this finding is not stated the way I withdraw it if I'd been on the arbitration board but I don't always have my way and -- and I say that that is a finding directly on the subject, but in answer to your question and I don't want to equivocate, that is the finding and that is the finding which the Supreme Court of California interpret it. Now the Board did comment that in our presentation both at the beginning all through the hearings which lasted a number of days in the final argument that we contended and they stated this in the introduction that the company contented that Doris Walker was not only a card carrying Communist which we prove but that she was committed to the full program that she was a traitor and an enemy of our nation and the Board found that to be true at least by implication but it -- it did not so state. It does comment upon that position in passing. Now if I might proceed to --
Earl Warren: Are you going to review the evidence, Mr. Johnson --
Gardiner Johnson: Yes.
Earl Warren: -- that leads to that finding.
Gardiner Johnson: Yes, I certainly am, Your Honor, with great detail I hope. The position of -- of the petitioner as we understand it is that -- that they simply take the broad position that there is no finding, that there is no evidence and that they have to use that as a platform or a springboard from which to take their legal position and that if that position factually and as far as the findings fail then their whole legal position is out. And -- and that's why I wanted to devote myself with more than usual care to the findings in this matter. I would come first to the question that was asked by Mr. Justice Frankfurter about this young lady's personal record. This was no dupe. This was no person who went along and join the party figuring if it was the way to get advancement on employment. The record shows without any possible question something that I think has seldom improved American trials involving Communist. I am aware that in the Dennis case, Mr. Justice Jackson commented about the Communist Party as follows. He said from established policy, it tolerates no deviation and no debate. May I call the Court's attention believing that a picture will present this far better than my words to the appendix to our brief. Unfortunately, in the printing of the record, one of the documents which have been introduced in photo list style was simply printed twice. What we have done to aid the arbitrators was to put in a handwritten document which is this three-page letter in the appendix. And then to aid them, we had given them a typewritten copy of it and in the printing of the record, they both come out printed. So, we had it photostat or photo list in our brief. Now, I -- I have no intention of trying to turn this Court into a jury trial but I know of no rule which forbids an appellate court from using the ordinary senses of perception. And I call your attention first to the signature on the three-page document. I call attention then to the signature on the Cutter Laboratories' application, which is on the reverse page on the top line. And to further illustrate it, there are -- there is another application which we eventually got from a cannery which is immediately behind the three-page letter. This is part of the record because we think it's significant. I intend to read it until though it's very short. I'm reading it from page 72 and may I state to the Court so no one has any misunderstanding that in our contention and we believe the record proves this that this is a confession in this lady's handwriting to the top hierarchy of the Communist Party in Alameda County and in the State of California, that she had gotten off as they term it to the party line and deserve to be disciplined. She refuses even to acknowledge her signature, although, I think no handwriting expert is needed to note the similarity to the other documents but here is what it says, it stated July 10 --
Felix Frankfurter: Point and tell us what it said.
Gardiner Johnson: Yes, sir.
Felix Frankfurter: You need to identify the content of this document (Inaudible)
Gardiner Johnson: It is a handwritten letter in the petitioners -- in Doris Brandon Walker's handwriting addressed to top functionaries of the Communist Party in Alameda County, California in which she is reciting certain conduct of hers at party meetings in which she got off the party line was irresponsible as she puts it and needs to be disciplined by them and apparently, they require her having confessed to the county people, they required her to transmit it in writing to the state party leaders.
Felix Frankfurter: (Inaudible)
Gardiner Johnson: Yes it was, Your Honor. It was their company's exhibit number 6, of course, as it's usual in such cases, she refused to answer any question concerning it. But here's what it said. Now, this goes directly to their question of whether there's evidence.
Speaker: Here it says the (Inaudible)
Gardiner Johnson: It's Doris Brin.
Speaker: Doris Brin.
Gardiner Johnson: Yes, Your Honor.
Speaker: (Inaudible)
Gardiner Johnson: The Walker is one of her married names. The records shows in a number of places that her maiden name was Doris Brin which evidently was her communist party name. She had been married to a Mr. Marasi, divorced from him and married to Mr. Walker. That information that I have just given you is all set out on Exhibits 22 and 23 which are printed on pages 70 and 71 of the transcript. The document says --
Earl Warren: Where are you reading from?
Gardiner Johnson: I'm reading now from page 72 of the transcript, Your Honor and it is the -- the typewritten subject matter of this letter. Dated July 10, 1946, I made the following statement to Lloyd today and at my request that he transmit it to the State, he suggested I write it out. After my discussions with Lloyd and Carol, Monday morning July 8, I gave a lot of thought to the points they raise concerning the resolution on the maritime strike introduced into the Cannery Workers Club which is identified as a Communist Party sell among the cannery workers by Elsie Smith in May. Now, this is the significant part, I think. I tried to evaluate my action as I try to evaluate whatever I do from the point of view of the welfare of the working class on the strengthening of the Party, with a capital P. What had struck me particularly in the discussion where Charles points as to the limited nature of our information, the daily papers including the PW, which is identified as the People's World, the official Communist Party paper in San Francisco and the irresponsibility implied by introducing a resolution based on such limited information. I feel that had I not been so much on the defensive during the discussion, I would have admitted my error at that time. As it was, I spent two days and much of two nights thinking through what I had done and came to the conclusion that we have introduced such a resolution under my club did not meet my test and was wrong. As a member of a club remote from the maritime situation and with no special information to have introduced the resolution was irresponsible. I want to make it clear that I had reached this position independently and before I talked to Elsie Smith yesterday, after I told her how my thinking was going, she told me that she agreed in substance and had already told the county so, which means the Alameda County authority signed Doris Brin. Now in the record, Lloyd and Carol are definitely identified as Lloyd Laymon and Carol Barnes both top Communist Party functionaries in Alameda County. They are the people with whom she has discussed this meeting or this letter it she says on the morning -- the morning of July the 8th. The person who wrote that letter has a remarkable educational background. One question has been asked to her. None of these has come forth in the argument of the petitioners, but may I just review this woman's -- this young lady's educational record. In doing so, I want to confess that somewhere in this record, there is an American tragedy. It's not for me to decide and I think that this Court can't, but here is a girl who graduated from UCLA in 1939 with honors in English, a member of Phi Beta Kappa. She went to the University of California Berkley, the law school which I insert another people prominent in Washington attended. She was not only graduated with an LLB in 1942 but she was a member of the Editorial Board of the California Law Review. And yet she graduated, as the record shows in May 1942 and by June the 3rd, she did two significant things on the same day. She joined the Communist Party, became a card carrying member and she went to work for the OPA in San Francisco as an enforcement attorney where she stayed for some two years beginning on the salary of $1800 as the record shows and going up to $3200. Now, in addition to that, this young lady had practiced law in San Francisco before she came to Cutter Laboratories and the record shows that, and she doesn't deny it. She admitted it. She had practiced law with the firm of Gladstein, Grossman, Sawyer, and Margolis prior to her Cutter employment for less than a year. Then she had gone to the canneries where there was labor strike between the teamsters and the food tobacco and agricultural workers. First she end up on the picket line representing herself as being a union representative and finding apparently that she was ineffective there, she actually got into the plants and stood in the line cutting asparagus and cutting spinach, a member of the State Bar of California, because I omitted that. She was admitted to the State Bar of California on December the 8th of 1942. She is practicing law now in San Francisco. Upon the handing down of this award as her attorney predicted at the trial upon exposure, it was economic debt as far as the type of work that she had gotten into so, she's back practicing law in San Francisco. And I might say practicing rather actively. This is the personal history as demonstrated in this --
William O. Douglas: Is that against California law?
Gardiner Johnson: I beg your pardon sir?
William O. Douglas: Is that again the California law?
Gardiner Johnson: No, that is not, of course. But I might say that the -- the misrepresentations that she made to our client in filing out the application blank are certainly direct violations of the State Bar Act of California. Because as it's demonstrated in the record, the -- the second document which I called your attention to, this application of the Cutter Laboratories is a complete fabrication.
Speaker: (Inaudible)
Gardiner Johnson: It does not, no. No, sir. That the way we found that out was on the first investigation in 1947 but we couldn't run down. The company was unable to run down these references that she gave. One of them is a lawyer. Mr. McTurnan who is referred to in that document as a lawyer. She admitted under oath that she called him and told him that she had given him as a reference as she did the other reference and that she had asked him not to disclose her legal background or training. He knew it because it was his brother John Trippe McTurnan under whom she had worked at the OPA and it is John Trippe McTurnan whose name -- she has cut the family name off in her application and she list John Trippe as her former employer in checking the state bar records. Eventually it was rundown by checking the McTurnans. We stumbled on to the fact that there were two, and one was Francis and one was John Trippe. And at the hearing, she admitted that's what she did. Now I'm not arguing her State Bar violation here. I take it that will be handled in due course by other authority. That's not part of my case. But I did want to make it clear that I think without any question, her action in misrepresenting completely her record is a direct and unquestioned violation of the State Bar Act of any of the states, but you are quite right. The conduct that I referred to practicing law now does not violate our state law unless she is still carrying on the conspiracy that we think that she was proved -- proved to have been carrying on during her employment and our plan and if she's doing that, I think she is violating the -- I don't think that the law of California expressly so states. Now, this is the -- this is the type of person who sought employment in three canneries and then came to Cutter Laboratories and became first as has been said a label clerk and then took on some minor curricular activity. We asked during the hearing a number of questions but may I say first that they -- they who now say that they've had no trial, the parties who complained that -- that this is taking away due process because they haven't had a hearing, they tried at the arbitration board's hearing is to stop us before we ever got started. We had asked the collateral question about the law firm that she'd been working for. Specifically the question was, “When you took employment there, did you know that they were the attorneys for the Communist Party?” Admittedly a collateral question, she refused to answer. The record shows that there was a long conference about it and that eventually a ruling was made. The basic ruling strangely was made on that issue. And that the arbitrators, at that point, indicated that they were not going to compel of her to answer. They found that the issue of Communist Party membership and activity was relevant, that it was part of the issues of the hearing, that they said we are not going to compel her to answer because if we do, you, meaning to employer, will go to Court and have recited and this arbitration will bug down. So we were compelled to proceed without any compulsion. What happened was that Mr. Edises, the Attorney for the petitioner, tried to get us to accept a stipulation. He tried to get us to stipulate that he would concede everything that was pertinent. He said so in -- in those words. We decline to accept that. We stated that the good faith of the management was not the issue, but we were entitled to prove the Communist Party and communist activity issue. So we went ahead. Eventually, Mr. Edises stated his position that we were persecuting the young lady. Now, I emphasize this because their complaint here is that they have not had a trial. To the contrary, they took the position at the hearing that we had gone further than we were required to or entitled to that we have proved everything that was at issue. And eventually, Mr. Edises stated that we were not going to prove Mrs. Walker to be a Communist and he said bluntly because I am not going to allow you to. I would like to read that from the record. I would call the Court's attention, page 139 and 140. At the bottom of the page, Mr. Edises is speaking and this is what he says,"They are not going to prove in this arbitration proceeding and they could not prove whether she is a Communist or not because I am not going to permit her to answer that question. Therefore, all they could do would be to bring in evidence showing that they had some basis for their suspicions for their beliefs and that is all it could come out of it. You could not even make a finding on that issue in this posture of the case.” And then here's his offer. “In order to expedite this hearing and to defend what is a principal position as far as Mrs. Walker is concerned, we are willing to make a concession of everything that they could possibly prove. We are willing to make a concession of everything that they could possibly prove. And anything further, I submit, goes beyond the necessities of proof and actually gets on to species of persecution. I am not quoting anyone but the attorney for the petitioner at the hearing. We persisted to the arbitration board that we are entitled to put our questions and to proceed to prove the issue and eventually we did. The questions which are -- were not asked are set out in one position, they are accumulated at pages 49 to 69 of the -- of the transcript. The reason being that we collated them to present them to the Superior Court, and they are all collected together at those pages. They appear throughout the transcript. They appear, for instance, at page 163 to 173. The questions concerning Exhibit 6, the party line confession appear at pages 192 to 197. None of them answered. Even though laboriously, we went through the document and asked her every possible question concerning each individual fact. The questions concerning Exhibits 6, 22 and 23 appear at pages 423 to 444. In that connection, I would call the Court's attention to the fact that Exhibits 22 and 23, as they appear at page -- pages 70 and 71 set forth rather detailed items listing official party offices that she had held. They referred to individual facts concerning her party record. Her card number is given on the date when it was issued. She was questioned concerning all of those items and of course refused to answer any of them. Now we contend that upon that record and I want -- I want to refer to two specific questions. At pages 442 and 443 of the transcript, she was asked directly these questions, and this appears at the bottom on page 442. Mrs. Walker is testifying. Isn't it a fact that the reason why you listed those individuals and contracted this fictitious employer was because of the fact that you were a remember of the Communist Party at the time and that you desire to get into the Cutter plant in order to carry on more effectively and more actively the program and the activities of the Communist Party. Of course, she declined to answer. On the next page, we asked her specifically this question. “Isn't it a fact and a matter of fact, Mrs. Walker, that your state of mind at that time was that you were a member of the Communist Party, that you were interesting -- interested in getting out into the field and taking a more active role in carrying on the field of activities in which you're interested and the activities of the Communist Party. And that it was for that reason that you misrepresented those facts. Now, the record demonstrates beyond any question a very interesting position, which I want to state briefly to this Court. This young lady had been investigated in 1947 as the record shows because some of the women employees in the plant contended that what they denominated as Communist literature was being brought into the ladies rest room. The management made a check. Eliminated it down to the point where one or more of about 15 people were suspected. And then what they did never having had this problem before, they asked the Retail Credit Association to carry on an investigation of each one of them just as they've done with some other salesmen. Immediately, the report on this young lady or with $6 or $7 was paid came back positive. But the testimony shows that the executive vice president called us -- called in the attorneys and said here is the report. Here are these facts, can we discharge this woman. She was a union official at that time. Now I cite to this Court on the record, I think will support maybe on any question and Mr. Cutter made the statement unequivocally its in the record, that he was advised by his counsel that what you have is gossip, suspicion, name calling. It may lead you to believe that she is a Communist, but it is not evidence and no arbitrator will sustain it. And on that ground, she was not discharged at that time, but they checked her. Incidentally, they went to the National Labor Relations Board that on June the 18th, 1947, the same day they serve the notice to open the agreement. They came to us and said, “You have been putting these people under surveillance because of union activities.” The company said, “No.” Surveillance, yes” admitted but not for union activities, for definite, communist activities which are suspected on the basis of these reports. Now, the charges were dismissed although we asked for a hearing before the NLRB. We wanted a hearing, but the charges were dismissed. So she remained in the plant. Until 1949, one of the personal employees read in the Labor Herald, a CIO paper in San Francisco, a statement that $205,000 in back salary was being paid to some cannery workers. And the concluding paragraph said that Doris Walker, her discharge, was going to be appealed because she had been fired for refusing to testify as the Communist Party membership. Immediately upon the reading of that, the company directed us and we had investigators on that occasion, professional investigators come in. They started of by getting the record from Mr. (Inaudible) office. He had been the attorney in the cannery dispute. And having that information, the record shows that from the day when they got that information on August the 23rd of 1949, that the only period elapsing was between August the 23rd and October the 5th. When we went over to the plant with the information which the investigators had brought in, all of this detailed information and much more than what we're able to get into the hearing, and all day was spent going over that report. The record shows this. It was checked. It was discussed. The conclusion was reached and they're advised that this is not suspicion. This is proof. And the next day, she was discharged. Now they say -- and they seem to say it seriously on the brief. That they never had any idea or suspicion that the Communist issue was part of this case until the decision of the Supreme Court of California. This record shows beyond any contradiction. But in the very statement which was read to her, on October the 6th when she was discharged that -- that very issue was covered. She was told in the statement which the vice president of the company read to her as follows. We are convinced now that for a number of years, you have been and still are a member of the Communist Party. We are convinced beyond any question that for a number of years you have participated actively in the Communist Party's activities. The nature of our company's business requires more than the usual precaution against sabotage and subversion. Upon a disclosure that any employee is a member of the Communist Party or has participated in other subversive or revolutionary activity. We conceive it to be the responsibility of management to take action. Confronted with such a situation, any inclination to be lenient or to grant a union official special consideration which is what the company contented it had done in 1947 is out. In the face of your record, there is no alternative open to us except to terminate your services at once. Accordingly, you are notified that you are discharge for the cause as mentioned. You will be paid the full amount duty properly. Now may I carefully state that -- I mean that's at page 8 of the arbitrator's report, Your Honor. At pages 7, 8, 9 and 10 appear the statement which the company read to her on her dismissal. It is set out in full in the arbitrators -- in the transcript.
William O. Douglas: Is there any evidence?
Gardiner Johnson: I'm sorry, sir.
Speaker: What page is that?
Gardiner Johnson: At pages 7, 8, 9 and 10. It is also set out in full in the Supreme Court of California's report in the -- in the back portion of the transcript. I'm sorry --
William O. Douglas: Is there any evidence in the record concerning the liberty of Communist (Inaudible)
Gardiner Johnson: No, sir.
William O. Douglas: I beg your pardon.
Gardiner Johnson: No sir. That was apparent -- that was conceded by all parties.
William O. Douglas: That they do?
Gardiner Johnson: Mr. Cutter --
William O. Douglas: What was the --
Gardiner Johnson: Mr. Cutter did say this. May I answer your question this way because, possibly, I haven't understood the full import of it. Mr. Cutter testified the considerable extent as to the fact that their products were peculiarly subject to sabotage. Now may I clear that up. He's not talking about dropping this. He may, of course, not talking about dropping emery dust into the machinery. He says that's a routine and can be cleared up very quickly. He's talking about the destruction of the records, the destruction of tests. Things that you are not able to find quickly and he does point out extensively at a number of pages that's covered on page 326 to 330. It's covered on pages 401 and 402.
William O. Douglas: Are we to take judicial notice if that's what the Communist do or likely to do.
Gardiner Johnson: I think not, Your Honor. I think certainly in this case it is not necessary. I -- I think our view is that in this case we demonstrated far beyond what it's possible to do normally, that there were such proclivities. We demonstrated that this young lady was not just a dupe. We just demonstrated that she had gotten into the plant for the purpose of, as we see it, and the Supreme Court so found in California for the deliberate purpose of becoming where she eventually went up as the president of the union. And we think that -- that some of your past decisions from this Court have indicated that those are positions where employers must be very cautious.
William O. Douglas: You said something to stipulate as to the communist -- proclivity of communist (Inaudible)
Gardiner Johnson: No I don't think I said that. I did not intend to. What I -- what I did say in the record is abundantly clear on it that Mr. Edises, the Attorney for the petitioner, in an effort to block us off, this record demonstrates that when that first question was asked, they asked for a five-minute recess and they went out on the hall and there was big huddle about what to do. And when they came back before we could post any question, he offered the stipulation. He wanted to chop us off from even having the right to answer a question or ask a question. And what he said was, that he would stipulate to all of the proofs that we needed. That we didn't have to go any further that if we did it was persecution.
Speaker: (Inaudible)
Gardiner Johnson: We had charged in our opening statement in the statement of discharge. We had charge that she was a member of the Communist Party with all of the -- as the arbitrator said with the full implications of commitment to sabotage force and violence. Now there are -- there are a couple of important points that I want to --
William O. Douglas: Did she have any -- any criminal record of any kind?
Gardiner Johnson: No, sir. She did not. I think that's not unusual on the situation but I want to answer your -- answer your question directly, she did not.
Hugo L. Black: (Inaudible)
Gardiner Johnson: I want to ask -- answer your question very directly and I'm not going to fudge.
Hugo L. Black: No. I just --
Gardiner Johnson: I have these reports here. There is a great deal of material in the second report. A great deal of material. Some of it we did not --
Hugo L. Black: Report of what?
Gardiner Johnson: This is the report that our investigators brought in. Some of these questions were asked somewhere or not. We got to the --
Hugo L. Black: Is there any evidence?
Gardiner Johnson: No, sir. Now there had been, there had been --
Hugo L. Black: (Inaudible)
Gardiner Johnson: The only thing which is in the record, Your Honor, and it is not complete, there is a reference in the record to a prior arbitration. They had a strike in 19 --
Hugo L. Black: What date is that?
Gardiner Johnson: Page on the 1947 strike. I'll get it for you. They had -- they had a strike in 1947. On that occasion, there was an arbitration because a couple of employees with Mrs. Walker got in through the gate. She was stopped before she got in so she never got there but the other two men went in and turned off the penicillin machines. Now we contented as to them and the prior arbitration that, that was a deliberate act of sabotage. I might say we lost the arbitration because the arbitrator held that when the company settled with the union. In effect, they settled with the man who had been dupes as they I call them and therefore that we had condoned it, but there was evidence as referred to in -- a 47 strike is referred to on page 13 in the arbitrator's report.
Hugo L. Black: What page is that in the record?
Gardiner Johnson: Page 13.
Hugo L. Black: Page 13.
Gardiner Johnson: Yes. All the pages that I am giving to the arbitrator's report are transcript pagea. There is also a reference --
Hugo L. Black: Now which part of the page?
Gardiner Johnson: Beginning in the upper paragraph it says, negotiations culminated in the strike which lasted from August 10 to 17 1947, with the intervention of Harry Bridges, the strike was settled on August 18, 1947 as a result of negotiation with him. That is the extent of the reference there.
William O. Douglas: No. The counsel go down two more paragraphs, you can see there's no evidence with any work stoppage, strike or other interference with reduction of the valid objective which was political and philosophical subversive or revolutionary.
Gardiner Johnson: That is correct. The 1947 strike, let me be clear on that, was for wages. It was not a strike but the incident that I'm referring to, the individual incident that I'm referring to which occurred during the strike is definitely not for wages but was simply a deliberate holding through the gate.
Hugo L. Black: Now where is the evidence of that incident?
Gardiner Johnson: The reference -- the only reference to that, Your Honor, is on page 85 of our brief. Now that was not --
Hugo L. Black: (Voice Overlap) record?
Gardiner Johnson: No that was not put in the record. Let me be clear on that.
Hugo L. Black: Is there any evidence in the record.
Gardiner Johnson: The evidence --
Hugo L. Black: -- character that tend to show --
Gardiner Johnson: The evidence in --
Hugo L. Black: (Inaudible)
Gardiner Johnson: The evidence in the --
Hugo L. Black: (Inaudible)
Gardiner Johnson: Well, the evidence in the record consist of the questions for instance that I referred to on page 442 and 443 and which we endeavored to get into that subject, you will note the two questions that I read, the one at the bottom of 442, the other question at the bottom of 443.
Hugo L. Black: (Inaudible) Are there any action --
Gardiner Johnson: No, sir --
Hugo L. Black: -- by anybody?
Gardiner Johnson: No, sir. She would not answer anything.
Hugo L. Black: I'm not talking about what she would answer. (Inaudible) what you say the board of arbitrators found --
Gardiner Johnson: Well --
Hugo L. Black: -- about her being a saboteur.
Gardiner Johnson: The Board --
Hugo L. Black: Was there any evidence --
Gardiner Johnson: The Board --
Hugo L. Black: -- or any witness --
Gardiner Johnson: The Board took --
Hugo L. Black: Reflects on her personality as a person --
Gardiner Johnson: The Board took --
Hugo L. Black: -- except that she was a communist.
Gardiner Johnson: The Board took this position, Your Honor.
Hugo L. Black: Well I'm not talking about that. I -- I want to see if it's in the record.
Gardiner Johnson: There are no answers. No, sir. But if I might --
Hugo L. Black: I have no objection. I just want to see (Inaudible)
Gardiner Johnson: If I might state my explanation now. The Board took the position as I indicated that they would not require her to answer, but they stated to her at the outset, that if you do not answer, we will draw any reasonable inferences. And they continued to tell her that as we went along at various junctures. We would ask her again and at the end we ask for an instruction that she be compelled to answer these questions. And the Board put her unnoticed and stated to her, “If you refuse to answer, we will not compel you, we will not allow counsel to have you cited, but we will draw any reasonable inferences.” And as the Board indicates, we think, in their award in the part that I read, set out on the top of page 29, they drew the reasonable inferences from the questions that had been asked from the documentary evidence that had been introduced and her failure to answer. Now the Supreme Court of California I want to answer your question so this is very clear. The Supreme Court of California in its decision at page 476, and at the bottom of the page says, the evidence as to her communist membership and acceptance of party principles with all the implications that flow there from thus stands unchallenged and uncontradicted by her and clearly supports the Board's finding not the Supreme Court finding but clearly supports the Board's finding that the company honestly and correctly believed her to be annoying and deliberately acting communist. Now, I think that's the first statement of the facts. For the remaining time if I may, I'd like to have Mr. Stanton discuss one or two of the legal points. I hope I have made clear that -- that we believe that the facts as we have stated them as the record in uncontradicted fashion develops them as the Board find them and as the California Supreme Court reaffirmed the Board's finding make the legal arguments as made by petitioner completely irrelevant but Mr. Stanton will develop --
Speaker: Mr. Johnson before you sit down.
Gardiner Johnson: Yes, sir.
Speaker: (Inaudible)
Gardiner Johnson: The California Supreme Court's findings or the declaration of the finding is set out on page 476.
Earl Warren: Mr. Stanton
Thomas E. Stanton, Jr.: If the Court please. Mr. Johnson made it very clear that as these briefs have developed and as these legal arguments have been presented to you in the briefs. The clash has been on facts rather than more of law. They haven't answered the arguments that we have made of course and the points that they make we have claimed in the briefs and we feel for their grievance that are set forth there then just not in -- present in this record because there was no dispute, Mr. Johnson has brought out and as it's clearly stated in the arbitrators award as to what we claimed, are words the claim -- straight claim was made that we claim that she was a communist with the full implications and I'm reading from page 27. The company's position is that the evidence in this case demonstrates beyond question that Doris Walker is not merely a conspirator but a traitor and an enemy of the country, and in the finding of the arbitrator which is made on page 29, a statement is made assuming and referring to Doris Walker's answers. Assuming their answers would have been favorable to the company's position, they would serve no more than to corroborate. What we find is already established by the record and the company offers no convincing reason why further corroboration is necessary. The arbitrator -- this matter that has been argued to you by petitioners here was argued before the California Supreme Court, very much at length as to the interpretation of that finding and as to its meaning and we feel that under the decision of this Court that matter has been solid for this Court because the California Supreme Court in several places, the very outset of their opinion, which is on page 469 of the record. We have concluded that upon the undisputed evidence and upon the facts found by the Arbitration Board the company is correct in its contention if the arbitrators exceeded their powers that the award is contrary to law and that would contravene public policy for the court's of this state to enforce reinstatement of the discharged employee. And there are other references in which the Court states as exact holding, but we were contending at page 478 as they start their opinion, they say as ground for reversal of the camp -- as ground for reversal, the company contends among other things and as it contended before the trial court in seeking vacation of the award that an arbitration award which directs that a member of the Communist Party who is dedicated in that party's program of sabotage, force, violence and the like, be reinstated to employment in a plant which produces antibiotics used by both the military and civilians is against public policy as expressed in both federal and state laws. Therefore, illegal and void and will not be enforced by the courts. With this contention, we agree. Now what was being done in this case was the interpretation and enforcement of a state statute, a state remedy. The California Supreme Court in prior decisions which are cited in the brief, had held that this was an equitable remedy, that the parties were entitled to enforcement of the award only if a court of equity would grant such enforcement.
Speaker: What if -- what we have here then is the evidence of the fact that (Inaudible) was a member of the Communist Party and there's no evidence and any action on her part of violence or sabotage of any kind.
Thomas E. Stanton, Jr.: No evidence -- sir?
Speaker: That the Court -- the Supreme Court of California held that the finding that has been made, turning her to the -- one of the company, would not be carried out because it's against public policy in California to employ a communist in a plant such as this. Is that your position?
Thomas E. Stanton, Jr.: No, Your Honor. It is our position that the evidence that was placed before the arbitration board as detailed by Mr. Johnson, this letter in her own handwriting, she refused to identify. The fact that --
Speaker: I -- I assume that she was a communist.
Thomas E. Stanton, Jr.: I beg your pardon.
Speaker: I assume --
Thomas E. Stanton, Jr.: Oh it goes beyond that Your Honor. Here was a person who is an attorney, who abandoned the career of the law to enter a plant. And when she was asked the direct and specific question as the Supreme Court points out at the conclusion of its opinion, did you seek that employment for the purpose of becoming more active and carrying more effectively the Communist Party program. She refuses to answer that question and she refused to answer other questions which purport -- I mean which are directed at the contention we were making in argument and every stage of the proceeding before the arbitration board. We made it clear what we trying to establish and this lady, without any claim of constitutional right, she had no right to claim, rights under the Fifth Amendment because she had waived those rights. She came before that Arbitration Board and as the record shows, she testified to her motif in leaving the practice of the law. She said that it was for the purpose of engaging in the labor movement. She testified to her motive for making this application -- misrepresentations in her application blank. She said that they -- because there was -- they were for the reason that she could -- have to have a job to eat, but the arbitration board did not infer that that was a fact and they inferred that the purpose was to get into the Cutter plant, to become active in the union, to achieve high position in the union and to -- all with the objective of carrying on the program of the Communist Party. And we placed an evidence of this report which was written less than three months before she took a job with -- took her position with the Cutter plant, and made this misrepresentations and which said that she violated everything she did from the point of view in strengthening the the party.
Speaker: Well, that -- that made her active communist.
Thomas E. Stanton, Jr.: That's correct, Your Honor.
Speaker: Now the Supreme Court of California held that if you're an active communist, no evidence of any sabotage or act of communist with all the implications of the past that that was not -- she's not employable after a contract of employment. Is that your point?
Thomas E. Stanton, Jr.: No, Your Honor because our point.
Speaker: I don't understand.
Thomas E. Stanton, Jr.: Well I -- I want to make that point clear, that what the Supreme Court held was we have before us an arbitration board finding of fact that she is a member of the Communist Party with the full implications of dedication of force, violence, sabotage. Those were the words of the arbitration board and they said, we have been asked to lend the force of the law, the power of the State of California to enforce that award. We have been told by the petitioners, the people were coming in for this relief that we cannot review that finding or any other finding of the arbitration board. That we are concluded by a finding, and they say and they draw specific authorities they had decided only a few years before that the California court is not helpless when its presented with the finding of that nature. When there is a finding which a Court concludes is against public policy, they have a duty and the power under the statute to withhold enforcement of that award. And they refer Your Honor -- they refer to the decisions of this Court, to the findings of Congress for the purpose of bringing out the full implications of party membership, for the purpose of explaining the public policy. That is why they refer to that.
Stanley Reed: I don't want to (Inaudible) on that. That seems very clear to me is what you're saying is that it is against the public policy of California as provided by Supreme Court to employ or require the employment of a communist under a labor contract in the Cutter Laboratories.
Thomas E. Stanton, Jr.: If -- I have to carry one further Justice Reed. If the finding is that she was seeking reemployment to carry on the -- she saw the employment originally and she was seeking reinstatement for the purpose of carrying on the program of the communist party. In other words in the facts as they are presented to the California Supreme Court and as they are presented to this Court, we submit the case of a contract, an action that was in pursuant of the Communist Party conspiracy. And -- yes, sir.
Felix Frankfurter: May I ask you a question before you sit down. As I understand your position to Mr. (Inaudible) today, namely, you're not arguing for the general proposition that no communist and no member of the Communist Party should be employed in California. Your position is that this particular situation -- particular set of facts, is that your position?
Thomas E. Stanton, Jr.: I want to make that very clear to you Your Honor.
Felix Frankfurter: In light of that, I would like to ask you a quick question. I recall that your Supreme Court, whatever it was, (Inaudible) held unconstitutional a provision of your electoral law denying the right of a Communist Party as such (Inaudible)
Thomas E. Stanton, Jr.: I think you're correct in the timing. It was Communist Party versus Peek Your Honor.
Felix Frankfurter: Yes. Is there any -- is there any contract -- I have that run down and I find that that provision of the electoral law has been formally -- was formally repealed by your legislation. It does not count on the book. And I recall the decision of your court, it's partly based on the fact that the court could not take judicial notice in its decision at that time as I have (Inaudible) Communist Party impliedly is a party dedicated to force and violence, is that correct?
Thomas E. Stanton, Jr.: That's correct, Your Honor.
Felix Frankfurter: Now what I want to know is what relation, what's the bearing of that decision in this case as you see it?
Thomas E. Stanton, Jr.: As we see it, Your Honor it has no bearing because as we see it, the California Supreme Court did not take judicial notice of the implications of the -- that the Communist Party was dedicated with force and violence. It was upholding the finding of an arbitration board. Now the arbitration board may have taken judicial notice but we take the position, Your Honor that they had sufficient to go on in the findings of the legislature and to other things. The decisions of the Court up to the point that they made the decision which justified their inferences and that was what they were.
Felix Frankfurter: In other words, I don't (Inaudible) opinion. In other words, either you say explicitly (Inaudible) change our mind and now we take judicial notice to a party as such and everything that the course apply etcetera?
Thomas E. Stanton, Jr.: Your Honor I do not consider that this case overrules that position or passes on that position because as the matter came to the United -- to the lower court, it wasn't called upon to take judicial notice.
Hugo L. Black: The findings which you -- in reference to the court's opinion (Inaudible)
Thomas E. Stanton, Jr.: Yes, Your Honor.
Hugo L. Black: (Inaudible) on page 476.
Thomas E. Stanton, Jr.: 476.
Hugo L. Black: They referred to the board -- the company the board's finding there not as anything more than this finding if the company honestly and directly believes her (Inaudible) deliberately acting company, is that what they referred to as what you're saying in what you just read or maybe to something else.
Thomas E. Stanton, Jr.: Well, Your Honor, are you reading from page 476?
Hugo L. Black: I'm reading from page 476.
Thomas E. Stanton, Jr.: What portion of it?
Hugo L. Black: I'm reading (Inaudible) referred to the finding not (Inaudible) referred to the evidence.
Thomas E. Stanton, Jr.: Well I'm sorry I can't find the finding language -- yes, sir.
Hugo L. Black: On which the evidence -- the evidence as to her communist membership (Inaudible)
Thomas E. Stanton, Jr.: Yes, sir.
Hugo L. Black: And all the implications flow there from thus stand unchallenged and uncontradicted by her, clearly supports the board's findings that the company honestly and correctively use her to be annoying and (Inaudible)
Thomas E. Stanton, Jr.: Yes, Your Honor and I think that the remainder of the opinion makes very clear that there is significance of that term correctly, in other words, the company honestly believed and the company correctly believed.
Hugo L. Black: That will be annoying and deliberately (Inaudible)
Thomas E. Stanton, Jr.: That's right Your Honor and if that not only was their belief right but the fact was such. That it was correct, in other words --
Hugo L. Black: I am -- I assume that's what it is but I don't --
Thomas E. Stanton, Jr.: Yes.
Hugo L. Black: -- see it goes any credit. They find -- they say that the evidence supported the board of (Inaudible). The company believed that it will be (Inaudible) annoying and deliberately acting communist.
Thomas E. Stanton, Jr.: And that they were correct in that belief. In other words, the fact was so. Well if --
Hugo L. Black: Did it find any more than that?
Thomas E. Stanton, Jr.: But what more did they need to find to find as I say they find and that is that the fact was that she was --
Hugo L. Black: She was going and deliver communism.
Thomas E. Stanton, Jr.: That's right, Your Honor.
Hugo L. Black: And -- ang that justified her job?
Thomas E. Stanton, Jr.: Yes, dedicated to the force and violence.
Hugo L. Black: Well, but they didn't say so in the finding.
Thomas E. Stanton, Jr.: Well, not at that point, Your Honor but in other parts of the opinion.


Warren E. Burger: Mr. Wasserstrom, you may proceed whenever you are ready.
Silas J. Wasserstrom: Mr. Chief Justice, and may it please the Court. My name is Silas Wasserstrom and I represent the Petitioner Thomas Whalen. Petitioner was tried in the District of Columbia Superior Court on a seven-court indictment charging rape, robbery, burglary and three counts of felony murder predicated on these felonies. He was also charged with one count of second degree murder, that is murder with malice. All of these charges grew out of a single incident and involved one victim. Two of these counts -- robbery and felony murder premised on it -- were dismissed by the trial court.
Warren E. Burger: You put a great deal of emphasis on the fact that there is only one victim?
Silas J. Wasserstrom: Well, I just want to make clear, Your Honor, that the issue here is one that involves consecutive sentences where where there is a single victim. Certainly if there had been more than one victim, our position would be very I am not trying to argue the fact that it was one victim is dispositive. It is clear to the Court that it is a case involving a single victim. Two more of these counts, those charging burglary and felony murder burglary, were dismissed by the Court of Appeals for reasons not --
Warren E. Burger: You say one victim, and therefore for only one crime.
Silas J. Wasserstrom: That is not our position, Your Honor. Our position is that if the murder in this case is proven by the Government in a way that does not depend on proof of the underlying felony, then we would not claim that there was any double jeopardy violation in punishing consecutively for the felony and for the murder. And we said in our brief that we are not challenging on double jeopardy grounds consecutive sentences for rape and the second degree murder count here. Our position is not that simply because there is one victim there can only be one sentence. Our position turns on the fact that here to prove the felony murder the Government relied on the underlying felony.
William H. Rehnquist: Is that strange?
Silas J. Wasserstrom: No, it is not strange at all.
William H. Rehnquist: It doesn't seem so to me.
Silas J. Wasserstrom: No, it isn't strange at all. What would be strange, in our position, would be to punish the person consecutively, however, for the felony murder as well as for the underlying felony.
William H. Rehnquist: What is strange about that?
Silas J. Wasserstrom: Well, it is strange for a number of reasons. First, the felony murder statute in the District of Columbia, and most felony murder statutes do, is to impose a rule of strict liability with respect to murder occurring in the course of a felony. The District of Columbia statute, for example, makes the penalty for such a murder -- first degree murder -- it makes the murder first degree murder and it makes the penalty for that murder 20 years to life, mandatory sentence 20 years to life. And that can be for killing which is otherwise blameless, the killing was just unforeseen, unforeseeable, unintended.
William H. Rehnquist: Because of the legislative judgment that -- necessary only if a felony were so dangerous to society, that if life is taken in the course of commission of a felony, you should be treated just as if you had the intent to murder.
Silas J. Wasserstrom: Well, Congress might have wanted to do that, but it is obvious that Congress didn't want to do that here. That is a separate argument. This is an argument we made, that Congress didn't intend consecutive sentences in this case; and we made that argument based on the legislative history and the structure in felony murder statutes. The double jeopardy argument is a different one. It is that to prove felony murder, a murder which carries 20 years to life, whereas the underlying felony without a killing would carry no mandatory sentence and would be punishable by provision if the judge chose to impose it. Our argument of double jeopardy is that when a felony murder can only be proved by proof of the underlying offense, that is the felony, then the felony is a lesser included offense of the felony murder.
William H. Rehnquist: But that that just stands Blockburger on its head, doesn't it?
Silas J. Wasserstrom: Well, that's --
William H. Rehnquist: Because Blockburger wasn't originally a constitutional test, it was a test for determining legislative intent.
Silas J. Wasserstrom: Well, that is the Government's argument, Your Honor. But there is really no question but that this Court has since Blockburger adopted it as the constitutional test for --
William H. Rehnquist: In what case?
Silas J. Wasserstrom: Well, Brown v. Ohio, for example, the Court said "The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger."
William H. Rehnquist: Well, that doesn't say anything about double jeopardy, does it, --
Silas J. Wasserstrom: Well --
William H. Rehnquist: -- the quote you just made?
Silas J. Wasserstrom: Well, what else would preclude it?
Potter Stewart: Brown v. Ohio was a double jeopardy case, was it not?
Silas J. Wasserstrom: It was a double jeopardy case; yes.
William H. Rehnquist: But the quote you just made said nothing about double jeopardy.
Silas J. Wasserstrom: Well, double jeopardy was the only constitutional provision that could conceivably forbid consecutive --
William H. Rehnquist: Further consecutive sentences.
Silas J. Wasserstrom: Moreover, in Brown this Court was clear in stating that. "When the greater offense" -- when two offenses are related to a greater and lesser included offense they are "the same for purposes of double jeopardy." Here we submit the rape underlying the Petitioner's conviction for first degree felony murder is a lesser included offense of the murder for the simple and compelling reason that to prove its case of first degree felony murder, the Government necessarily had to prove the underlying rape. This being so, Brown, Blockburger teach that the rape and the felony predicated on it are the same for double jeopardy purposes. And thus, the consecutive sentences imposed here were unconstitutional.
William H. Rehnquist: You say Brown, Blockburger. I take it what you mean is Brown, since Blockburger wasn't a constitutional case.
Silas J. Wasserstrom: No, Block -- our position, Your Honor, is this - that Blockburger establishes a test.
William H. Rehnquist: For legislative intent.
Silas J. Wasserstrom: Well, it establishes a test which was originally formulated as a test for determining legislative intent. It has since been adopted by this Court as the constitutional test for defining same offense.
William H. Rehnquist: In Brown. Although --
Silas J. Wasserstrom: Brown has been treated -- it has been treated as a constitutional test in several other cases.
William H. Rehnquist: Yes, but Brown was a State case where presumably the State courts of Ohio were perfectly competent to determine what the intent of the Ohio legislature was.
Silas J. Wasserstrom: Well, that is all the more reason it would seem then, the fact that this Court never struck down the decision of that court.
William H. Rehnquist: So it didn't turn on legislative intent.
Silas J. Wasserstrom: Well, it turned on the fact that the Ohio court interpreted its two statutes -- the two statutes it issued there -- joyriding and grand grand larceny as bearing a greater and lesser included offense relationship. That was determinative to this Court in Brown, the fact that -- one was a lesser included offense than the other, and this Court held that they were the same for purposes of double jeopardy.
Warren E. Burger: Suppose a man and his wife were taking a walk, or a young man and his girl friend, and the attacker rapes the woman and then murders the man in the process of his trying to come to her defense and her aid. Double jeopardy?
Silas J. Wasserstrom: If they had consecutive punishments for the -- if the Government can prove any kind of intent with respect to the murder and prove the murder based on that theory --
Warren E. Burger: A felony murder and he committed a homicide in the course of carrying out a felony -- committing a felony.
Silas J. Wasserstrom: Well, I would concede that that would be more difficult problem. There is I would concede a --
William H. Rehnquist: Well, why would you? I would think your --
Silas J. Wasserstrom: Well --
William H. Rehnquist: -- position would be clear as a bell on that, that's double jeopardy.
Silas J. Wasserstrom: Well, I think it would be double jeopardy --
Warren E. Burger: Under what case would be?
Silas J. Wasserstrom: It would be under the same principle, Your Honor, Brown v. Ohio and Blockburger as now incorporated as the constitutional test. The murder in that hypothetical you postulate, apart from the felony --
Warren E. Burger: Suppose he went on to murder the woman too, then, chose to eliminate the only surviving witness?
Silas J. Wasserstrom: Well, I think that in most --
Warren E. Burger: Is it still double jeopardy?
Silas J. Wasserstrom: Well again Your Honor, in most situations, such as the case here, the murder can be proved on a theory other than that of felony murder.
Warren E. Burger: I am just assuming --
Silas J. Wasserstrom: And where it can be proven on that theory.
Warren E. Burger: The hypothesis is that both are felony homicides and therefore under the statute, felony murders?
Silas J. Wasserstrom: Well, certainly if he eliminated -- if he killed the woman to eliminate her as the only witness it would surely be a premeditated murder and if the State were able to prove it as such and, if it did, then double jeopardy might not --
Byron R. White: Yes, but you can't try him for double jeopardy -- you can't try him over in some other lawsuit -- the Chief Justice suggests -- what if it is tried as felony murder and the only proof it is of intent is another felony, is it the underlying felony.
Silas J. Wasserstrom: If the Government proceeds on the felony murder statute as to each of the two?
Byron R. White: Yes.
Silas J. Wasserstrom: Then each felony murder would be punishable consecutively, but not consecutively to the underlying felony.
Byron R. White: So your theory does say that even if there are two victims it would be double jeopardy?
Silas J. Wasserstrom: It would be double jeopardy to punish consecutively for the rape and the felony murder, not to punish consecutively for the felony murders.
Warren E. Burger: Then certainly that doctrine if it were followed by this Court would put a premium on eliminating the witness.
Silas J. Wasserstrom: Well, in D.C. for example, Your Honor, if you eliminated two witnesses your penalty for two counts of felony murder would be 40 years to life, which means that you would be eligible for parole after 40 years. I don't think that, facing that kind of penalty, that is going to induce criminals to want to murder wantonly without thinking about it.
Byron R. White: And could I ask you, was the issue below that double jeopardy -- I have a difficult time finding any discussion of the double jeopardy provision in the opinion.
Silas J. Wasserstrom: Well, the opinion ignored this Court's opinion.
Byron R. White: So there is not a mention of double jeopardy in the opinion, is there?
Silas J. Wasserstrom: Except to the extent that in the murder doctrine --
Byron R. White: Well, I know, but that is a separate doctrine. That is a sort of semi-judicial legislative doctrine. But there is not a mention of it. Did you present it?
Silas J. Wasserstrom: Your Honor, I am not absolutely sure exactly what our brief said in the Court of Appeals below concerning --
Byron R. White: Well, I will give you a clue. I am; and you did present it.
Silas J. Wasserstrom: I know we presented it. The argument had not been decided.
Byron R. White: Well, it wasn't even discussed.
Silas J. Wasserstrom: No.
Byron R. White: And --
Silas J. Wasserstrom: Your Honor, I do know we filed a supplemental memorandum after Brown and Harris were decided, bringing those cases to the Court of Appeal's attention. We also petitioned for rehearing en banc in this case, making the argument from those cases, the double jeopardy argument; and that petition was denied. So it was presented to the Court of Appeals and in their opinion they simply ignored the double jeopardy problem.
Byron R. White: Well, perhaps we should remand it for reconsideration, in the light of some cases that we don't see mentioned.
Silas J. Wasserstrom: Well, that is not generally done when a court simply makes a mistake of law.
William H. Rehnquist: You say where the case has been called to their attention.
Silas J. Wasserstrom: These cases Your Honor -- I don't know -- they were not called to their attention in the initial brief, because it hadn't been decided. They were called to their attention in the supplemental filing we made and we called it to their attention in a petition for a rehearing en banc. So the court was aware of them when it issued this decision. It seems to us, Your Honors, that both the Court of Appeals and the Government speak of the felony murder rule as one which permits the jury to infer the requisite intent of first degree murder from the commission of the underlying felony and in this respect they fail to understand the fundamental nature of that doctrine. In the District of Columbia that felony murder statute does not merely create a permissive presumption that the accused harbored a particular mental state with respect to the killing. The jury is not instructed that it may infer that the defendant had the mental state required for first degree premeditated murder from the fact that the killing occurred in the course of a felony.
William H. Rehnquist: We are talking now about the intent of Congress in passing this Act?
Silas J. Wasserstrom: No, I am just talking right now Your Honor about the way the felony murder statute in fact operates. The Government and the Court of Appeals both treat it as though it simply creates a presumption and that the jury then makes its own determination of whether there was in fact premeditation and deliberation.
William H. Rehnquist: So you are not quarrelling with the Court of Appeals construction of the statute. You are saying the Court of Appeals mis-describes the way --
Silas J. Wasserstrom: I think the Court of Appeals mis-described in the course of its opinion; yes.
William H. Rehnquist: Are you quarreling with --
Silas J. Wasserstrom: And that misunderstanding may have led the court to gloss over what would otherwise be, or should have been an apparent double jeopardy problem.
William H. Rehnquist: But you are not quarreling with the Court of Appeals construction of the statute.
Silas J. Wasserstrom: Well, we are quarreling with their construction of the statute as intended to permit consecutive punishments here, or to authorize --
William H. Rehnquist: But since the Court Reorganization Act of 1970, the Court of Appeals for the District of Columbia is the last word as to what a statute such as this means, as if a State court says this is what it means.
Silas J. Wasserstrom: Well, Your Honor, we would submit that although the District of Columbia may since Court Reorganization bear certain of the hallmarks of a State and State court decisions may not be reviewable in the way they were prior to Court Reorganization, where there is a constitutional guarantee at stake -- and we submit that even our legislative argument is grounded in the Constitution, the Government itself concedes that where multiple punishment is imposed and the legislature did not intend it be imposed there is a violation, a substantive violation of the accused's double jeopardy rights.
Warren E. Burger: Do you suppose Congress had in mind the thought that it was bad enough to have the crime of rape occur but they didn't want to do anything to encourage homicide, the killing of the victim, and that therefore two penalties were provided?
Silas J. Wasserstrom: Well, Your Honor, there is a penalty for rape and there is a penalty for felony murder. It is our position that Congress did not in fact provide in any sense that these punishments be impossible consecutively. In fact our position is that the legislative history and the structure of these statutes indicates if anything that Congress did not intend to permit the courts to cumulate punishments for felony murder and the underlying felony. I don't think there is any question that the felony murder statute, is one of the interests that is protected by that statute is the interest in saving human life. But it does so in a way and is structured in such a way, that it seems apparent another interest to be protected in that rule -- in that statute is the same interest that is protected by the underlying felony. Congress didn't after all make it first degree murder to kill under any circumstances in any way. It didn't impose a rule of strict liability for any killing, and impose a mandatory sentence of 20 years to life. It is only if the killing occurs in the course of the felony that such a penalty is authorized. It is our position that that indicates very strongly that what Congress meant to do by the felony murder statute was to punish the person, hold him culpable both for killing and for committing the underlying felony during which the killing occurred. The Government to a great extent I think gets mileage out of the facts of this case. This case appears clearly to involve a rape and a murder -- or killing, rather, which was in fact done with a culpable mental state. And the jury so found, the jury found him guilty of second degree murder.
Warren E. Burger: What would have been the penalty if there had been just a murder, just the homicide and nothing else?
Silas J. Wasserstrom: Just the second degree? The penalty would be up to 15 years to life but, again, unlike first degree murder a judge can give any sentence he wants in the District of Columbia, including probation for second degree murder. That is the startling thing. Perhaps not just in the District of Columbia, although I think it may be more extreme here. And that is the startling thing about felony murder statutes. They make murder first degree murder. They make a killing, rather, first degree murder. In the District of Columbia at least, that killing carries a mandatory penalty of 20 years to life. No matter what the judge wants to do the defendant convicted of first degree murder is going to spend 20 years of his life in jail. Any other form of homicide, second degree, manslaughter, the judge can give a sentence of probation. That is true also with respect to any of the underlying felonies can be the predicate for felony murder. It seems also that the structure of the statute reveals that Congress intended to punish in part for the felony, because the statute imposes a rule of strict liability where the killing occurs in the course of six enumerated serious felonies and requires that for it to be first degree murder, a felony, as any other felony the murder has to be purposeful. This in our view also indicates that Congress when it enacted the penalty provisions -- when it enacted the felony murder statute and structured it the way it did -- clearly intended that the punishment for the felony murder would incorporate the notion of liability for the underlying felony as well. This is why in our position if a court punishes a defendant consecutively for a felony murder and for the felony on which it is promised, in a very real and palpable sense it is imposing double punishment for that felony.
William H. Rehnquist: Well, do you think that argument withstands analysis in the case of intentional rape that results in death where there is carnal violation of the woman plus the death? Aren't there two separate interests there?
Silas J. Wasserstrom: Well, I think there are two separate interests but -- my position is that the interest protected by the felony murder statute is an interest in human life plus an interest protected by whatever the underlying felony charge is.
William H. Rehnquist: Well, say in the --
Silas J. Wasserstrom: When you punish, you are protecting both those interests. When you punish for rape, you are punishing twice for the rape.
Byron R. White: I simply don't follow you. Perhaps I am wrong and you are right on the analytical aspect of the thing but it seems to me that -- you know, you can conceive of a system of justice which regarded penetration of a woman in a rape case as being a more serious offense than the taking of life.
Silas J. Wasserstrom: Well, this Court did hold however that, for example, the death penalty would be inappropriate for rape.
William H. Rehnquist: Right. But I am saying in an analytical sense you can have your scale of values however the legislature chooses to draw that.
Silas J. Wasserstrom: Well, Your Honor, for example it certainly does -- it does punish rape more severely than it does manslaughter.
William H. Rehnquist: Yes.
Silas J. Wasserstrom: But again, I think the Court should be on mind that the felony murder statute doesn't work only where there is a rape. It works with any one of six enumerated felonies to impose a rule of absolutely strict liability. That is a person who burns down a house he believes to be vacant but in the course of the fire a derelict who happens to be sleeping in it is killed, is punishable by a mandatory sentence of 20 years to life. Now, that sentence obviously has to be based not only on the fact that a killing occurred, because that killing was unforeseen and unintended, but on the fact that it was during the course of an arson.
William H. Rehnquist: Is the double jeopardy analysis that you think the Court has adopted based on the actual facts necessary for a conviction in each particular crime, or in the abstract on what facts might be used to convict for each particular crime?
Silas J. Wasserstrom: Well, I don't think that is an easy question. I think the position -- what test this Court has adopted --
William H. Rehnquist: Well, I don't either.
Silas J. Wasserstrom: Well, the position that I think the Court has adopted and the position which we take in our brief is that at the very least when the indictment itself reveals that one offense is a lesser included offense than the other, it will have to be proved in order to prove the other, then it should be treated as a lesser included offense, and the same offense, for purposes of the double jeopardy clause.
William H. Rehnquist: So --
Silas J. Wasserstrom: That it seems to me --
William H. Rehnquist: Is that an answer to the question of whether if for double jeopardy purposes you analyze the facts of each particular case to decide whether there is double jeopardy and if one fact has to be proved twice or one offense contains a fact that the other does, it is double jeopardy? Or is it an abstract thing that you might have to in a hypothetical situation prove one fact twice?
Silas J. Wasserstrom: Again, Your Honor, if you look at the indictment in this case, for example, you can see by looking at the indictment that to prove the felony murder the Government is going to have to prove the felony -- I mean the rape, to prove that rape was premised on a felony murder, they are going to have prove the rape. Now, again, in many cases a murder that is part in some sense of a felony or that occurs during a felony, it may very well be provable as a murder, as a homicide on some theory other than felony murder. And where the Government does that it is not relying on the felony --
William H. Rehnquist: But that isn't this case.
Silas J. Wasserstrom: No, the defendant here was convicted of second degree murder.
William H. Rehnquist: So as far as first degree murder is concerned, this case involves felony murder and felony murder only. Am I right?
Silas J. Wasserstrom: That is correct, Your Honor.
Warren E. Burger: And if he were to get a new trial he could not be tried for anything higher than felony murder.
Silas J. Wasserstrom: Well, he was never charged with premeditated murder. This is not the case where there is any kind of implied --
Warren E. Burger: He was being charged in a second degree case.
Silas J. Wasserstrom: But here he wasn't charged with first degree murder. He was only charged with second degree murder and he was convicted of second degree murder. Of course we are not challenging the conviction. All we are asking for is remand for re-sentencing with respect to the rape and the felony murder premised on it. He stands convicted right now of second degree murder, incidentally. That conviction was never set aside.
Potter Stewart: He was convicted of second degree murder.
Silas J. Wasserstrom: He was and he stands convicted. The Court of Appeals made a point of not setting that -- I don't know if it made a point, but it didn't set aside that conviction. It vacated the sentence on that count. Our double jeopardy argument would not preclude a court on remand from sentencing consecutively for rape and for second degree murder. So the defendant still would be, in our view, subject to a penalty of up to 30 years to life. This would be because the second degree murder was proved without reference to the underlying felony.
Byron R. White: But he can't just re-sentence for a felony murder and --
Silas J. Wasserstrom: And the underlying felony. It is our position that --
Potter Stewart: Didn't this Court hold almost precisely that in Harris v. Oklahoma?
Silas J. Wasserstrom: Well, it is argued that Harris is dispositive, Your Honor. The Government takes the view that Harris is different because that involves successive prosecutions as opposed to consecutive sentences imposed after a single trial.
Potter Stewart: And the Government's argument is that the test should be quite different.
Silas J. Wasserstrom: The Government argues that the meaning of same effect for purposes of double jeopardy clause varies from context to context.
Potter Stewart: Right.
Byron R. White: But it just says you can punish as many times you want to the same act, if you just have one trial.
Silas J. Wasserstrom: That is the Government's view, yes.
Byron R. White: Yes.
Silas J. Wasserstrom: Well, that is another way I think of saying the same offense means nothing, really, in the context of the single trial other than what the legislature wants it to me. But the legislature --
Byron R. White: It has also been argued there is no violation of the Blockburger rule. We have got a lot of arguments but one of them is that there is no violation of Blockburger.
Silas J. Wasserstrom: Well, the Government argues that there is no violation of Blockburger on the theory that here anyone of several felonies --
Byron R. White: That is right.
Silas J. Wasserstrom: -- could have been charged. And you can argue that position carries to its logical extreme -- or you can just -- well, carries to its extreme, entails completely absurd results, as I think we showed in our brief. I think that even offenses that have always been traditionally considered almost paradigmatic cases of a greater offense and a lesser included offense would in their view be different, not be the same for double jeopardy purposes. Also, as we argue in our brief, it seems to me that the decisions of this Court, or a plurality opinion of this Court in Jeffers as well as the dissenting opinion in Jeffers, both indicate that in deciding whether two offenses -- whether one offense is a lesser included offense than the other, you look to the indictment. You don't just look to the statute in the abstract and see what could have been charged. You at least look to the indictment -- if you don't look to what happens in trial, you at least look to the indictment. And if you look at the indictment here you know from looking at it that the felony murder did -- the felony murder premised on the rape was just that, premised on the rape.
Byron R. White: Do you think Iannelli fits that analysis?
Silas J. Wasserstrom: Well, I think that Jeffers and Iannelli read together certainly do. The way Jeffers talked about Iannelli and the way Jeffers emphasized -- I think it was Footnotes 15 and 16 of Iannelli -- I think the court was making just about this point. I have very little time left. I would just say that I think our brief adequately covers our argument that even if the double jeopardy clause doesn't apply here to absolutely bar consecutive punishments, that is even if the Government's position is accepted, any kind of reasonable interpretation of the relevant statutes would have led the Court of Appeals to conclude that Congress did not here intend consecutive punishments. The legislative history of the penalty provisions to the felony murder statutes which were enacted in 1962 show quite clearly that those members of Congress who addressed themselves to this question felt that for a fatal felony murder the defendant's effective sentence should not be greater than the sentence for pre-meditated first degree murder, that is 20 years to life. In the Government's view, every time a felony murder is proved the defendant would be subject to a penalty considerably longer than 20 years to life sentence which the congressmen thought was sufficient.
Warren E. Burger: And you spell that out of the legislative history, do you, of the --
Silas J. Wasserstrom: All the congressmen that spoke to the issue indicated that they thought 20 years in prison for the single felony murder was enough time to be eligible for parole. It doesn't mean that he is going to be paroled, but it means he would be eligible after 20 years. It is also, we argue, implicit in the structure of the statute. But more importantly, it is our argument that if double jeopardy doesn't operate to bar absolutely punishment for two offenses that are the same, under Blockburger, at the very least it creates a very strong constitutionally-based presumption that where two offenses are the same, under Blockburger, consecutive punishment should not be imposed unless the legislative intent that they be imposed is unmistakably clear.
William H. Rehnquist: What if the Supreme Court of Ohio in Brown had said "We have heard your double jeopardy argument, we know we are bound by the United States Constitution amendment, we find them unconvincing, and we find the legislative intent to be against you, do you think this Court would have had any power to reverse other than on a constitutional basis?
Silas J. Wasserstrom: Well, it is our position this would be a constitutional basis, a constitutionally-based presumption. Because we are --
William H. Rehnquist: It is not we are to avoid a constitutional question.
Silas J. Wasserstrom: No, because if the Court is wrong when it imposed are sanctions consecutive punishment, then there is in fact a substantive violation of the defendant's double jeopardy rights. So where do you have a mistake in this area? You have a violation of a specific constitutional guarantee. Interestingly enough, I think this position is is the position taken in the Yale Law Journal note which the Government relies on so heavily in its brief, to try to argue that, the question of whether two offenses are the same should be entirely for the legislature. I see my time is up. Thank you, Your Honor.
Warren E. Burger: You are very welcome. Mr. Frey, if you do not want to provide your argument between now and tomorrow, we will rise.
Mr. Andrew L. Frey: If it is all right with the Court, I would be happy to begin now.
Warren E. Burger: Very well. You may open tomorrow.
Mr. Andrew L. Frey: Mr. Chief Justice, and may it please the Court. From one standpoint this appears to be a case that deals with an arcane and esoteric corner of the law. It lends itself to subtle linguistic disputes regarding the meaning of such terms as "same offense" and "lesser included offense" as well as to elaborate efforts to plumb the depths of the mysterious Blockburger test. It has produced from Petitioner and intricate analysis of snippets of dictum in Brown v. Ohio, in Jeffers, and in Simpson. And I can't deny that we too have engaged in our brief in a serious effort to analyze comprehensively this complex and interesting talk. There is however a danger in all of this the Court will lose sight of the forest for the trees. So let me draw back for a minute to make one point. It seems to me both futile and absolutely devastating to Petitioner's contention that the double jeopardy clause bars Congress from imposing cumulative punishments for rape and felony murder because the two offenses are the same. Suppose Congress had enacted a statute that stated as follows - "Anyone who kills another person in the course of committing a rape shall be sentenced to a maximum term of life imprisonment and to a minimum term in the discretion of the sentencing court of not less than 20 nor more than 35 years." Now, it seems to me beyond argument, given the power of the legislature to define offenses and to set punishments for them, that the double jeopardy clause would have no bearing whatsoever on the validity of such a statute. And that is exactly what the Court of Appeals construed the statute in this case to mean. Now, it is true Congress expressed its will by means of two separate statutes, which must be read together to give the result of my hypothetical statute, but surely the double jeopardy clause cannot be construed to require that the legislature employ a particular form of words or that it do something in one section rather than two. Such a reading would trivialize this important constitutional provision. This is precisely the conclusion that this Court reached in Gore where it said about, after analyzing the hypothetical statute such as I have given, is it conceivable that such a statute would not be within the power of Congress. And is it rational to find such a statute constitutional but to strike that on the Blockburger doctrine as violative of the double jeopardy clause or here to strike down the two separate statutes as violative of the double jeopardy clause? Now, let me turn back from the forest to the trees. Petitioner's argument rests upon the notion that because proof of felony murder requires the proof of the underlying felony, the latter is a lesser included offense of the felony murder and therefore is the same offense and therefore may not be made the subject of multiple punishments. He says the Blockburger test is a constitutional test under the double jeopardy clause for the permissibility of multiple punishments. There are several difficulties with his argument. The first difficulty is that rape and felony murder are not in fact the same offense under the Blockburger test, which depends upon the elements of the two offenses. Obviously, one need not kill in order to rape or rape in order to kill.
William J. Brennan, Jr.: Under the Blockburger test there didn't have to be successive prosecutions for these two offenses.
Mr. Andrew L. Frey: I don't think that the Blockburger test is the exclusive criterion for successive prosecutions, although I think that if they fail the Blockburger test there could not be successive prosecutions.
William J. Brennan, Jr.: Well, do you think there could be successive prosecutions here?
Mr. Andrew L. Frey: Well, not under Harris v. Oklahoma; but I have no problem squaring that result with the position that we are contending for here, because it is a very different matter as to what punishments the legislature may prescribe and as to when the courts and the prosecutor may --
William J. Brennan, Jr.: Would that be whichever prosecution came first?
Mr. Andrew L. Frey: I think that would be true under Brown, whichever prosecution came first.
Warren E. Burger: We will resume there at 10:00 o'clock tomorrow morning.