Warren E. Burger: We will hear arguments next in Clements against Fashing. Mr. Allison, you may proceed whenever you are ready.
James P. Allison: Mr. Chief Justice, and may it please the Court, this case involves Article XVI, Section 65 of the Texas Constitution, the resign to run provision, and Article III, Section 19, concerning eligibility to the state legislature. The action was brought for declaratory judgment and injunctive relief alleging violation of the First, Fifth, and Fourteenth Amendments to the U. S. Constitution. The officeholder plaintiffs were a judge of the county court at law, two justices of the peace, and a constable. Other plaintiffs included citizens and registered voters. The defendants were the local and state officers who were charged with the enforcement of the challenged provisions. The district court held that both Article XVI, Section 65, and Article III, Section 19, contravened the equal protection clause of the U. S. Constitution, and therefore the district court granted the plaintiffs' motion for summary judgment and injunctive relief. The U. S. Court of Appeals for the Fifth Circuit affirmed the district court opinion adopted in the memorandum pending in the district court. A short, very brief historical background on these provisions and the Texas political system would be helpful in analyzing these provisions. The current Texas constitution was adopted in 1876. The constitution provides for a very decentralized system of government. Under this constitution, almost all local and state offices are elected, and from 1876 until the 1950s each of these, almost all of these were elected for a two-year term. In the 1950s, four-year terms were extended to most of these offices. In 1954, four-year terms were extended to the precinct and county offices included in Article XVI, Section 65. In 1958, after the people of the state had extended four-year terms to these offices, the resign to run provision in Article XVI, Section 65, was adopted. Article III, Section 19 has been included in the Texas constitution since the constitution of the Republic of Texas was drafted in 1836. I would first like to point out an error in the conclusions reached by the district court in its memorandum opinion. The district court found and apparently relied heavily upon a distinction between the application of the resign to run rule to the office of justice of the peace and its application to the office of municipal court judge. The district court stated that the justice of the peace is included under Article XVI, Section 65, and the municipal court judge, who has very similar jurisdiction, is not, and found that to be a distinction of some great importance in finding that the resign to run rule contravened the constitution. What the district court overlooked was Article XI, Section 11 of the Texas constitution, adopted in 1958, at the same time as the resign to run rule in Article XVI, Section 65. Article XI, Section 11, states that any municipality which extends the terms of its officers from two years to four years, that once that is done, that those officers will be under the same resign to run provisions as offices that are under Article XVI, Section 65. So there is no distinction between the application of the resign to run rules, between the office of justice of the peace and any municipal office, whether it be municipal judge--
Speaker: Was that called to the attention of the district judge?
James P. Allison: --No, Your Honor. To the best of my knowledge it was not.
Speaker: Even after the judgment?
James P. Allison: I don't know, Your Honor. I did not have this case until after the Fifth Circuit had ruled on it.
Speaker: But municipal judges who still have two-year terms are still subject to the resign to run rule?
James P. Allison: No, sir.
Speaker: I mean, they aren't. They are not subject to it.
James P. Allison: They are not.
Speaker: Yes, that's right.
James P. Allison: Because no one with a two-year term is subject to the resign to run rule. Only when they adopt a four-year term.
Speaker: Does that necessarily destroy the holding below?
James P. Allison: I think it destroys the contrast, because any time that a municipal judge is in the same position as a justice of the peace, that is, holding a four-year term, it is under exactly the same rule.
Speaker: Well, it might depend on whether the difference is relevant.
James P. Allison: It might.
Speaker: Is there any question but what the state trial court of general jurisdiction or the district court is subject to Article III, Section 19?
James P. Allison: Article III, Section 19, or Article XVI, Section 65?
Speaker: Article III, Section 19.
James P. Allison: No, it is subject to Article III, Section 19. In analyzing these provisions, I think it important to note the activities or rights which are not restricted under these two provisions. There is no question that the right to vote is not included and is not restricted under either of these provisions. Neither is the right to support other candidates, the right to speak out on issues, or the right to test the water.
Speaker: May I get back to just a moment to what you tell us was the error of the district court? What can we do about that? Can we correct it?
James P. Allison: I don't think... I think you can correct it by reversing the judgment. I pointed out simply that the district court was in error in arriving at that conclusion, and using it--
Speaker: Yes, but you said this was relied on very heavily.
James P. Allison: --It appears to be.
Speaker: To support the finding of unconstitutionality.
James P. Allison: Yes, sir.
Speaker: But it is a matter of Texas law, I guess, isn't it?
James P. Allison: Well--
Speaker: Ordinarily, we don't second guess holdings of district judges or courts of appeals--
James P. Allison: --In this case--
Speaker: --as to what state law is.
James P. Allison: --In this case, it appears to be a conclusion of law as to whether or not there is a rule--
Speaker: Well, I know, but we have to read the section that you said he misconstrued, and we would have to do what? Construe it ourselves?
James P. Allison: --I think you would have to reach the conclusion that there is no difference between the application of resign to run rules between these two offices.
Speaker: What is the highest Texas court that would take care of a question like this? The Supreme Court? Is it the Texas Supreme Court?
James P. Allison: If it were presented to it, yes, sir.
Speaker: Do you say that is an error of law or an error of fact by the district judge, by the trial judge?
James P. Allison: I think it is both. I think the court was in error as to the fact of whether or not there was a resign to run rule applicable to the municipal court judges, and then did arrive at an erroneous conclusion of law that Article XVI, Section 65, creates a difference in classification between the two offices.
Speaker: But the real error was in not giving the judge a chance to straighten it out. Right?
James P. Allison: I do not know. I don't know if the judge would straighten it out had he--
Speaker: He wasn't given the opportunity. You didn't call it to his attention.
James P. Allison: --To my knowledge, it was not.
Speaker: You said you didn't, but I mean your office was responsible for it.
James P. Allison: The record does not reflect that it was called to his attention at that time.
Speaker: And it could have been straightened out then, couldn't it?
James P. Allison: Right. It was pointed out to the Fifth Circuit.
Speaker: Did I understand you to say the judge overlooked the recent statute?
James P. Allison: No, sir, he overlooked Article XI, Section 11, of the Texas constitution.
Speaker: That was not newly enacted, of course.
James P. Allison: No, sir, it was adopted at the same time as Article XVI, Section 65, the resign to run provision. It was on the same ballot.
Speaker: His opinion did not mention that at all?
James P. Allison: No, sir.
Speaker: So what you are saying is, he simply, so far as the face of his opinion goes, did not consider an article and section of the Texas constitution.
James P. Allison: Yes, Your Honor.
Speaker: So he didn't construe it, he just apparently didn't cite it at all.
James P. Allison: Right.
Speaker: Or consider it.
James P. Allison: That's correct. I would further point out that among the activities not restricted to Article XVI, Section 65, is the right to test the water, that persons who contemplate running for office in Texas have the opportunity to go out and solicit possible support without having to resign an office, and that is in direct opposition to the position taken by the plaintiff appellees in this case. I would further point out that the Texas resign to run rule does not involve any suspect classifications. There is no direct burden on any particular portion of the electorate or upon any particular political viewpoint. The only effects upon the voters would be if they wished to support a particular candidate and that candidate was in mid-term of an office he was holding at the time, and he declined to run because of the resign to run rule. In that limited sense you could say that the Article XVI, Section 65, resign to run provision has some slight effect upon the pool of candidates available to the voters. Otherwise, it has none. Article XVI, Section 65, appears to be a unique resign to run provision. Although a majority of the states now have some resign to run rule, Article XVI, Section 65 differs as nearly as I can determine from all of these, in that Article XVI, Section 65, applies only to the first three years of a four-year term. In the last year of your term in Texas, you are free to run for any office, either re-election of the office you then hold or for any other office that you might choose to announce for. I believe this is important in weighing the rationale behind the adoption of the resign to run rule. In 1954, when the four-year terms were extended, replacing the two-year terms, the people of Texas staggered the terms to be served. That is, they provided that approximately one-half of the officeholders would come up every two years, thereby shortening the ballot. What this also did was create a temptation and an opportunity for an officeholder in mid-term, in the middle of the four-year term that had been extended to him, to run for another office, to take a free ride while continuing to hold the office that he had been elected to for a four-year term. The state interests served by the resign to run rule have been widely discussed in other cases, and were recognized by the district court in its opinion in this case. The resign to run rule prevents abuse of office, and in this case, by applying it to the first three years of the term, it also prevents neglect of the duties of the office, and that a person may not go out and use his time to run for office while occupying the office he has been elected to. It also prevents abuse of office by a losing candidate who if he were allowed to run in mid-term would return to the office that he had presently held and continue to serve for two years after having run and lost for another race, and certainly it also eliminates even the appearance of impropriety of candidates who are holding an office being allowed to run for higher office or other office in the middle of their term. There is no less restrictive means to achieve these ends. The other possibilities, a leave of absence provision, for example, would certainly not prevent the abuse of office by a losing candidate who would return to the office. The criminal statute, which prohibits abuse of office or abuse of official power, does not in any way affect the neglect of duties that could occur while an officeholder left his office and went out and ran for another office in the middle of his term.
Speaker: Do you see any comparison or analogy between the resign to run provision and the provision of Article I, Section 6, of the United States Constitution, that says no Senator or Representative shall during the time for which he was elected be appointed to any civil office under the authority of the United States which shall have been created or the emoluments thereof have been increased during such time?
James P. Allison: Yes, I certainly see an analogy between that and Article III, Section 18, of the Texas constitution, which has the same provision, and I have cited it further in my argument. And I certainly see an analogy between that and the provisions of both the federal Hatch Act and the state Hatch Act, which also prohibits candidacy. The plaintiffs in this case, the appellees here, argue that apparently the resign to run rule is defective because it is under-inclusive. They argue that it does not apply to everyone, it only applies to them. And it is true that there are a number of offices excepted from the rule. The process at arriving at a decision through the legislature is always one of compromise, and certainly that was involved in the arriving at this resign to run rule, but to hold the resign to run rule unconstitutional simply because it makes too many exceptions would require that a statute or constitutional provision either go all the way in treating a problem or not attack the problem at all.
Speaker: Do you think the exemption of state legislators from the rule was the result of compromise?
James P. Allison: Possibly, though I would certainly point out that members of the house of representatives only serve a two-year term anyway, so the resign to run rule purpose of preventing them from neglecting their duties in mid-term while running for another office would have no application to them, because they have to run either for re-election or for other office every two years. The state senate, that may have been the case.
Speaker: Well, do we have to find that this is the result of a compromise, or this is the deliberate choice of the state legislature for reasons which they haven't explained, and perhaps don't need to explain?
James P. Allison: I think that the provisions can be upheld on the basis of any rational basis for their application, but if you go beyond that--
Speaker: Do you have any system of preserving the legislative history, the evolution of a statute in Texas?
James P. Allison: --Unfortunately, at the time these provisions were adopted, 1954 and 1958, there was no legislative history as such in Texas.
Speaker: These were amendments proposed by the legislature, were they?
James P. Allison: Amendments proposed by the legislature, adopted by the people.
Speaker: Yes.
James P. Allison: I would point out that the exceptions found in Article XVI, Section 65, are not classes of persons. They do not involve any suspect categories. They are exceptions of specific positions, and the presumption there is that the legislature based these exemptions upon some circumstances within their knowledge, and that the judiciary will not normally invade that province of the legislature. Article III, Section 19, has been similarly attacked on the same basis, that it creates classifications, and the same arguments apply. I would also point out that the standing of these plaintiffs to attack Article III, Section 19, is particularly objected to by the appellants in that there is no plaintiff who indicated a definite intention to run for the legislature. Article III, Section 19, provides that any person holding a lucrative office in the state shall not be eligible for the legislature during the term for which they are elected. None of the plaintiffs in this case indicated that they definitely intended to come within that provision. One of the plaintiffs said that if it weren't for Article XVI, Section 65, that required him to resign the position he then held, he might run for the legislature or he might run for one or two other offices that he named in his affidavit. We do not believe that that meets the standard case or controversy requirement in order to challenge the constitutionality of Article III, Section 19.
Speaker: But I gather each of these plaintiffs falls within one of the categories to whom Section 19 applies? I mean, he is either a judge or one of the other offices, is he?
James P. Allison: Each of them would.
Speaker: Each of them would.
James P. Allison: Yes, they were all holders of a lucrative office.
Speaker: But none of them has suggested he wanted to run for the legislature except the one who said maybe he might.
James P. Allison: Except the one who said he might run for the legislature, or he might run for one or two other offices mentioned. The district court also did not mention Article III, Section 18, which provides that no senator or representative shall during the term for which he was elected be eligible to, one, any civil office or profit under this state which shall have been created or the emoluments of which may have been increased during such term, or two, any office or place the appointment to which may be made in whole or in part by either branch of the legislature. This is the equalizer between the application of Article III, Section 19, which says that if you are holding a lucrative office in another branch you cannot run for the legislature during that term, and Article III, Section 18, states that if you are in the legislature you cannot run during your term for an office that you created or increased the emoluments of or that the legislature may act upon the appointment. That provision prevents abuse by legislators.
Speaker: General Allison, you say this is an equalizer, but a moment ago you said that the classifications here are not classifications of persons, but rather classification of offices. Do I understand that argument to mean that you don't understand there to be a constitutional duty to treat all offices alike, and if so, you don't even need the equalizer if that argument is right? Is that correct?
James P. Allison: That's correct. I am working on two levels. If you adopt the rational basis argument, then any rational basis that can be found to sustain these provisions is sufficient to uphold them, but if you go further, and if you adopt either the means to the end test or some type of balancing test, then these other provisions come into play.
Speaker: If I understood your argument about the difference between offices, not persons, you don't even need a rational basis, because the persons just happen to occupy different offices, and there is no constitutional requirement that different state offices have the same emoluments. There is no constitutional requirement that a county judge be paid the same as a circuit judge, for example. Is that what you are arguing?
James P. Allison: Not exactly.
Speaker: What is the constitutional requirement that different offices have the same emoluments, burdens or benefits?
James P. Allison: I don't think there is any.
Speaker: Well, then you don't even need a rational basis.
James P. Allison: Well, I think you need a rational basis when you differentiate or distinguish between the qualifications to be a candidate for an office.
Speaker: Why? Why couldn't you say, you need a college education to be a circuit judge, and you need a high school education to be a county judge? What is wrong with that?
James P. Allison: You can.
Speaker: Even if it is not rational. Even if the one has greater responsibility than the other. What is the constitutional objection?
James P. Allison: Well, that is a rational basis.
Speaker: No, I am saying, even if the more difficult job you merely required a high school education for, I don't know why the Constitution would prevent the Texas legislature from doing that.
James P. Allison: I don't think it would.
Speaker: Well, I took it that you were attempting to respond to the rationale of the Fifth Circuit on this. Was that the point you were trying to make?
James P. Allison: Yes, it was. There is no question that these provisions of the Texas constitution create some restrictions on candidate access to the ballot, but this Court in Bullock versus Carter set the standard in stating that in approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on the voters. As I have stated, these provisions serve legitimate state interests. That has not been contested either at the district court or the Fifth Circuit level. They serve them in the least restrictive means possible, and the classifications that are created are reasonably related to the interests to be achieved, so regardless of the standard adopted, be it rational basis, means to an end, the ends-means test, or even strict scrutiny, these provisions meet the standards. This Court also in U. S. Civil Service Commission versus National Association of Letter Carriers, quoted Thomas Jefferson, stating as follows: "The right of any officer to give his vote at elections as a qualified citizen is not meant to be restrained, nor, however given, shall it have any effect to his prejudice, but it is expected that he will not attempt to influence the votes of others nor take any part in the business of electioneering, that being deemed inconsistent with the spirit of the Constitution and his duties to it. " The people of the state of Texas have elected to require their officers to adhere to this principle. Such is their right under the Constitution.
Speaker: Mr. Allison, if one subject to the resign to run rule... those are four-year term people?
James P. Allison: Yes, sir.
Speaker: Now, if you want to run for an office for the term beginning when yours expires, you are going to have to start running while you are in office.
James P. Allison: In the last year. Yes, sir.
Speaker: And so you have to resign under that?
James P. Allison: No, sir.
Speaker: You don't?
James P. Allison: In the last year of your four-year term, you can announce--
Speaker: You can run for a term that starts at the expiration of your own?
James P. Allison: --Yes, sir.
Speaker: Whether or not it is for re-election of your present office or a new one?
James P. Allison: Yes, sir. Without restriction.
Speaker: Mr. Allison, in your brief you advanced a number of arguments justifying the various classifications in Section 65, but in the answers to your interrogatories at the trial level, or the interrogatories that were propounded, it sounded like at best Section 65 was just the product of maybe some sloppy legislative drafting, and that these arguments are rather an afterthought. Is that the case?
James P. Allison: It is difficult if not impossible to say. There is no legislative history in Texas to support what the rationale may have been for the provisions. The defendants in this case are the executive officers charged with enforcing them, and they had no role in the adoption of the provisions. To ask them what was the rationale or the basis in the minds of the legislature at the time they adopted the provision, it is almost impossible to answer. I advanced several arguments that could have been, and that certainly can be sustained as a rational basis for these provisions.
Warren E. Burger: Mr. Caballero?
Raymond C. Caballero: Yes, Your Honor. Mr. Chief Justice, and may it please the Court, Texas in Article XVI, Section 40, has a prohibition against dual officeholding. That means that you cannot hold more than one lucrative office at the same time. Article XVI, Section 65, is not a dual officeholding prohibition. Article III, Section 19, started out as a dual officeholding provision, and in 1836, they added that clause, "during the term for which he is elected or appointed. " That is what causes the problem in III, 19, that I will be discussing later on. In terms of the legislative history here, Section 65 of Article XVI was passed in 1954, after the resolution of the legislature to place it on the ballot for the revision of the constitution at the general election, and its purpose, and if you look at the headnote, says it is a transitional article to provide for the staggering of elections between the various officeholders who had been granted four-year terms. In 1958, the paragraph in question here in Section 65 was also made part of the constitution, and at exactly the same time, verbatim, the same clause came into Article XI, Section 11, that I will be discussing here in just a second. There is no reason that I know, nor did the state advance any in the courts below, other than that it... well, the state in the court below simply said that it was going to prevent abuse of office, and therefore that is why the article was placed in there. Now, the question was raised here this morning that the district court made an error of fact or of law in neglecting to mention Article XI, Section 11. That was the provision enacted in 1958 which allowed cities in the state of Texas to give four-year terms to mayors and members of the city council. They had to vote it in. They didn't give it automatically. Very few cities took advantage of that provision to give members of its city council four-year terms. Perhaps counsel here in rebuttal can mention one. I don't know of any, but there may be some. Certainly El Paso, Texas, where this case arose, did not take advantage of it, and where Judge Hudspeth sat at the time members of the city council and municipal courts only had terms of two years.
Speaker: Well, isn't the point that if the municipal judges had only two-year terms, and the justices of the peace four years, that it is--
Raymond C. Caballero: I apologize. The municipal court judges had four-year terms, but under our provision, we do not have the application in El Paso nor in most areas of the state of Texas of the four-year Article XI, Section 11, statute. The members of the city council run for two years, but the municipal court judges have four-year terms, but the statute does not apply to offices in... I am sorry, they have two-year terms. That statute does not apply in El Paso. My confusion is... is this. The problem here is that municipal court judges run... municipal elections in Texas are in odd years. State and county elections are in even years. That means that a municipal court judge, when he comes around, he wants to run in a state election, in an even year, does not have to resign the office, even though he is only holding a two-year term.
Speaker: --Yes, but he has less than a year to go.
Raymond C. Caballero: He has less than a year to go. There is no prohibition at all to a municipal court judge running. Now, the times here as far as the Texas election process is concerned are important. The filing date in Texas since 1959 has been the first Monday in February of an even year. The way you are elected is, your term runs until January 31st of an even year. That means, for example, if my term as a judge or another officeholder, I would be in office now. If I wanted to run for another office, I would have to file by February 1. However, if I went out and solicited any kind of support for that other office prior to January 1 of this year, the statute does not say private announcement or public announcement, it simply says by the mere solicitation of a campaign contribution, or the announcement of any kind, I am going to be a candidate for some other office. That automatically causes you to vacate your office. An officeholder... and therefore you lose that office immediately, and you lose your livelihood for a period of a year, even if you win the office that you are now seeking, and that is even if you are running in the last year of your term. It is even worse if you are running mid-term, that is, if you have a four-year term and you are running two years into your term, because then you lose three years of your term.
Speaker: Counsel, are you arguing that the burden is so severe that it is unconstitutional even if it applied to everybody?
Raymond C. Caballero: Yes, that is one thing that I am arguing, that this statute... and I argued in the court below, this statute has problems. Both statutes have problems. Even if you... well, Section 65 has problems even if you applied it to everyone.
Speaker: Well, presumably when they ran for the original office, they took it subject to the burdens that the statute imposed.
Raymond C. Caballero: That's correct.
Speaker: So long as there is no equal protection problem. What else would there be?
Raymond C. Caballero: Because it imposes a burden on voters and on candidates that is unnecessary. What goal is it, Your Honor, that you are trying to further by placing a burden? When you place a burden on election rights, our contention is there should be some reason for it. The state has been able to advance, according to the district court, no valid reason for placing such burdens on candidates.
Speaker: Well, what happens with states that say you can only serve one term?
Raymond C. Caballero: There are states that provide that for certain offices you can only hold office for one term.
Speaker: There certainly are. That is right. What is wrong with that?
Raymond C. Caballero: I don't know of any prohibition against providing for one term.
Speaker: Well, isn't that a little more stringent than this one?
Raymond C. Caballero: Yes, Your Honor, it is more stringent.
Speaker: Under this one, you can serve 26 terms, provided you abide by the law.
Raymond C. Caballero: The problem with this provision is--
Speaker: And the other one, you can't serve but one anyway.
Raymond C. Caballero: --That's correct.
Speaker: When you talk about restrictions, I think you had better get another word, don't you?
Raymond C. Caballero: Well, the problem is, when you are running for that one term, Your Honor, you run for the one term knowing that you were going to keep the one term. The problem--
Speaker: You run knowing that you can't campaign for the other one.
Raymond C. Caballero: --You run knowing probably that you cannot campaign for any other office.
Speaker: That's right. Why is one so bad and the other one is not?
Raymond C. Caballero: I think that in this case, Your Honor, the policy generally should be that... I think you mentioned in one of your opinions... there are two... there are competing policies here. It used to be that, one, you wanted to shorten the ballot, and the other policy was that you wanted to provide people access to the ballot and ways to express their viewpoints. In this case, the problem is, you would like to keep people in office and have them tend to their office and not be running for other offices. That is one policy. The competing policy is, there are various judges on this very Court who have come from other courts. The policy has been that you want people to move up the political ladder, to move up to higher office. This defeats that policy.
Speaker: Where does that policy derive?
Raymond C. Caballero: It is not written anywhere, Your Honor. Just the policy generally--
Speaker: Plus, I don't think any of us ran for this office.
Raymond C. Caballero: --No, you--
Speaker: I hope we didn't.
Raymond C. Caballero: --No, Your Honor, that is true, but in Texas, judges are political, not appointed. You have to run for office in Texas. That is a decision made by the legislature, obviously making judges political persons, as opposed to some states--
Speaker: Wouldn't it be unconstitutional for Congress to say that no federal judge may run for the United States Senate without first resigning?
Raymond C. Caballero: --Without first resigning?
Speaker: Without first resigning his judicial office.
Raymond C. Caballero: My offhand impression would be that it would not, Your Honor. Now, there is--
Speaker: How is this different?
Raymond C. Caballero: --It used to be the law in the state of Texas, and in the Moreo case there was a prohibition of judicial officers running for non-judicial office. That is not the case here. The prohibition in Texas was removed some time ago. I can see a state validly, as in the Moreo case, with which we have no quarrel, saying a judicial officer may not run for non-judicial office without resigning the judicial office first. That was upheld in Moreo. In this case, we would not have a First Amendment claim, we would have strictly an equal protection claim, were that the case.
Speaker: May I ask you a question about your equal protection claim? What is the most glaring example of unfair treatment? There are so many offices involved, it is hard to... and there are different dates of running and all. Just pick the two that you think are the worst.
Raymond C. Caballero: All right. I will give you a couple. There is actually a case, and you can take the cite here, it is 377 Southwest 2nd, and it is also reported in 380 Southwest 2nd. I think it was cited in the earlier briefs, not before this Court, by the state. That is the case of Willis versus Potts, Willis versus Fort Worth. It involves really both provisions that are akin to the ones that we have in question here in this case.
Speaker: Well, I would be much happier if you told me about one in this particular record, the two offices in this record that you think there is the most arbitrary discrimination between the two.
Raymond C. Caballero: All right, I think, for example, county judge.
Speaker: County judge?
Raymond C. Caballero: A county court of law judge who desires to run for the court of civil appeals, which is the next court of appeals up above that court. Contrasted with a district court judge, also a trial judge, sitting alone, who also reports to the same appellate court. The district judge is not governed by Section 65. He may run midway through a four-year term, keep office, even if he lost.
Speaker: He is governed by Section 19, isn't he?
Raymond C. Caballero: Yes, he may not run for the legislature, Your Honor. That is because it is a lucrative office. That is correct. He is ineligible for that section. The county court of law judge, let's say that both seek the same office.
Speaker: Would it not be rational for a legislature to think that they should protect the public from confusing these various courts and judges, so that the judge on this county court you speak of would be precluded from having his picture and his posters out around the area, saying, keep Judge Moreo on the bench. The public might think they should keep him on when in fact he is running for a different office. Isn't that a factor a legislature is entitled to take into account?
Raymond C. Caballero: That is sort of the... that is a factor, but that is the judicial officer running for a non-judicial position, I think is what you are raising, which is not really the question.
Speaker: No, I am talking about the county judge running for the next highest court.
Raymond C. Caballero: You can say that, but why would you then turn around and say that a district judge can do that which a county court of law judge does not? There has to be some reason for the distinction. The state was unable to come up with any reasons at all, even in their brief. They said, we have already discussed that distinction. They didn't. They never did discuss the distinction.
Speaker: Do the courts have the same kind of jurisdiction?
Raymond C. Caballero: Akin. The county courts at law, being creatures of the legislature, are given all kinds of different jurisdictions. Some of them have family, divorce--
Speaker: In other words, they have broader jurisdiction than the district judges?
Raymond C. Caballero: --For example, in probate, they have plenary jurisdiction.
Speaker: Yes or no? I don't need the examples. Does one have a different jurisdiction?
Raymond C. Caballero: Yes. The district court--
Speaker: And they get different salaries?
Raymond C. Caballero: --Yes, they do. The district court--
Speaker: What is their claim... what constitutional provision do they rely on to say they are entitled to be treated equally? They are not treated equally. They are different offices, they are paid different salaries, with different jurisdictions.
Raymond C. Caballero: --They are not entitled to be treated equally, but to the extent that they are not treated equally there has to be some reason for it. The state--
Speaker: Could not the legislature, which now pays one more than the other, change its mind and decide to pay that one less than the other?
Raymond C. Caballero: --Conceivably they could.
Speaker: Does it have to have a reason other than they just want to save some money?
Raymond C. Caballero: Under your past cases of the equal protection clause, yes, they do have to have a reason when they treat people--
Speaker: What past cases deal with any requirement to treat different offices equally? The men or women occupy different offices. Why must the offices be alike?
Raymond C. Caballero: --The offices do not have to be alike, but to the extent that they have made a distinction, there has to be some, even at the lowest level of scrutiny.
Speaker: Do we have to review the distinction in salary or distinction in jurisdiction? Why is there a federal reason why those different offices have to have similar treatment? I don't understand the basic premise on which the whole case rests. Why can't Texas create the XYZ court, give it precisely the same jurisdiction as some other court, but just pay the judges a different salary if it wants to?
Raymond C. Caballero: It could.
Speaker: And then why can't it say, well, those judges have to resign to run, but other judges don't?
Raymond C. Caballero: Because there, when you--
Speaker: They occupy different offices.
Raymond C. Caballero: --When you are paying one more than the other, perhaps it is subject to attack. Perhaps there is no valid reason why you pay one judge more than the other. I am just assuming that one perhaps has more jurisdiction than the other, but when you are allowing two men with basically the same qualifications to run for the same appellate office, they are both qualified to run for the court of appeals, for example, on the one hand, you say, judge, you are a judge of the county court of law, therefore you lose your office; you are a judge of the district court, you get to keep your office. This Court has said even at the lowest level of scrutiny there has to be some reason for the distinction. The state cannot come up with any.
Speaker: Well, when you talk about distinctions, supposing that a county court judge is paid $15,000 and a district court judge is paid $20,000, and then the legislature decides to raise the salary of the district judge to $25,000 but not raise the salary of the county court judge at all, so that whereas the county court judge used to make 75 percent of what the district judge made, now he makes 60 percent. Do you think that is subject to attack under the federal Constitution?
Raymond C. Caballero: It may be subject to attack if there was no reason, if the state... I can see the state easily coming up with a reason for that distinction.
Speaker: Supposing this was something done back in '54 or '56, and the state is in the position that they can't explain at all why the legislature decided to do this? Do you think that then would be subject to attack under the Constitution?
Raymond C. Caballero: For example, if this Court were to examine it and find no reasonable... in other words, if you are placing burdens on some and not on others, and you are unable to come up with any reason, and you have burdened some rights, then I think the state statute is subject to attack.
Speaker: Well, is my example a burden?
Raymond C. Caballero: I suppose it is a burden of sorts. I suppose someone could conceivably come up with an argument. Here you are talking about something that goes way beyond a mere distinction of salaries. You are talking about a person who is subject to losing office, and another person who is not subject to losing office, a tremendous distinction, not one of mere degree, but almost of kind.
Speaker: Would you urge that we apply a rational basis standard then?
Raymond C. Caballero: Your Honor, I am urging that you apply a balancing test, kind of like you did in Letter Carriers, and what the court of appeals below suggested in Moreo, and that is, the closer... that is a good example.
Speaker: How would you distinguish the Letter Carriers case, where the Court upheld the Hatch Act?
Raymond C. Caballero: Well, there, the interests of the government were tremendous. There is a policy of long standing that in civil service in the United States, you want to keep them as free as possible from political pressures.
Speaker: Well, here is a policy of long standing in Section 19 of the state constitution.
Raymond C. Caballero: Your Honor, that is what I was saying. I don't know of any policy other than it is a legislative enactment. I am talking about a reason for it. For example, in Letter Carriers, there is a reason. We don't want civil servants to become involved in the political process to the extent where they themselves become partisans. The reason behind Section 19, the state of Texas has been able to come up with one. They said it that prevents conflicts of interest. And then you pose the hypothetical, what happens if I resign my office? Therefore there would be no possible conflict of interest. I am still rendered ineligible. In that situation, they have come up with no distinction whatsoever, no reason for it. The policy decision that I was speaking of earlier is not one that is contained so much in the legislation or is embodied in the legislation, but simply something the government has come up with, and that is the reason that you have civil service on the federal side.
Speaker: Counsel, supposing the Postmaster General put into effect a policy against political activity such as in Letter Carriers, and the Secretary of HEW did not. Could the postal workers claim a denial of equal protection?
Raymond C. Caballero: Yes, they could, I would think, if they--
Speaker: So if any one department of government imposes some such restriction like this, it is invalid unless it is put into effect throughout the government?
Raymond C. Caballero: --This Court has said in the past that... the argument was raised by defendants in those cases, you know, you can't expect a legislature to enact everything all at once so everything is uniform, and this Court has held that if someone brings a complaint that they are being treated unequally, that you cannot guess and say, well, maybe they... this statute that we have here in this case has been around for 23 years. I don't know how long we have to wait for the legislature to come up with the provisions to make it equal treatment. 1836, I would think, is long enough on Section 19.
Speaker: Well, you are starting with an assumption that there is a constitutional requirement that there be equal treatment.
Raymond C. Caballero: There is, Your Honor. There is, equal treatment to the extent that there is not, that there should be some reason for it. That is the test of this Court.
Speaker: Well, I think you are a little too broad on different agencies. I know some agencies in this government you can write and print whatever you want, and I know others you can't.
Raymond C. Caballero: That is true, and in application--
Speaker: And I think this Court has passed on that point.
Raymond C. Caballero: --In the Willis case that I was going to mention earlier, it is two cases, and I think they really illustrate the problems with both cases. Willis was a congressman from Fort Worth. Willis decided that he was going to run for the state senate. Willis announced for election. Filed his application, or tried to file his application with the Democratic chairman there in Tarrant County, and the chairman said no, Section 19 makes you ineligible to run for the Texas senate because your term, even if you resign today, would be extending into the legislative term sought.
Speaker: Is that a constitutional decision?
Raymond C. Caballero: It was mentioned, but it was not based on the constitution. They simply went and upheld--
Speaker: It was meant to but it wasn't based on?
Raymond C. Caballero: --The court did not say... the court found nothing wrong with the provisions under the Texas or the U. S. Constitution, Your Honor.
Speaker: Well, would you mind if I am not bound by that decision?
Raymond C. Caballero: I don't think you are bound by the Willis decision.
Speaker: Thank you.
Raymond C. Caballero: But I am mentioning it simply because of the facts that it raises. Now, in Willis, after this person was held to be ineligible to run for the Texas senate, as soon as he announced for the Texas senate, though he by law could not become a candidate, it was held by the Fort Worth City Council that he had resigned his office because they had a... it was not 65, but it was something akin to 65 that says as soon as you announce for another office, you lose your spot on the city council. So Willis then filed a second lawsuit, and said, since I can't be a candidate for the Texas senate, I was never a candidate, I should not be losing my office. And they held there, they applied what in effect was Section 65 in the Fort Worth City Charter, and held that he had lost his office also. And that's the kind of situation you get here. You are not eligible to be a candidate. For example, Judge Baca in this case, who wants to run for the legislature, cannot file for the legislature. First of all, he is ineligible. Secondly, as soon as he files or announces for office, he loses the one year remaining in his term.
Speaker: You are suggesting that the legislature and the people of Texas haven't a right to say that if we have a person in this particular office, we want him to spend all his time, devote all his energies to that office, and not dissipate his time and energies by running for another office while he is holding the first one to which he was elected.
Raymond C. Caballero: The people of the state of Texas, Your Honor, I suppose could say that, but what has happened is that they have said some officeholders we are going to apply the rule to, and some we are not. For example, if a district attorney decides to run for governor, loses his office; the attorney general decides to run for governor, he does not lose his office. In the state's brief in this case, they say that it shouldn't be applied to state officeholders because they are unlikely to run for higher office, when in fact this present attorney general has already filed... he has announced for office. The previous attorney general, John Hill, filed and ran for office and lost. Neither one of them lost their terms. Texas has 256 counties. To allow you only 37 days to test the waters, to see whether or not you want to run for office, is so restrictive a burden as to be unrealistic. What has happened also is that these provisions were enacted in 1958. At that time, the filing deadline in Texas was in June, which gave you about five months to test the waters. Immediately after these provisions were enacted, and I don't know how much thought was given to it. There is no legislative history. In 1959, the legislature moved up the filing deadline to the first Monday in February of each year, so you lost about four months of this testing of the waters period. Before, it may have been reasonable, with a June deadline. Now, with 37 days, saying you cannot run for statewide office or for any other office; if you merely seek office you have lost your present office, that has such a chilling effect that it has prevented a lot of people, including my clients in this case, they claim in affidavits and in pleadings that they will not run for those offices so long as we are looking at these legislative provisions. If there are no further questions.
Speaker: Of course, there is another option that is always open, I guess. They could resign their offices to practice law privately or whatever their skills might be, go into the private sector and then run. They are not totally disabled.
Raymond C. Caballero: They are not totally disabled, but if you take judges, that is an unrealistic alternative.
Speaker: I know a lot of judges who have resigned.
Raymond C. Caballero: There are some who have resigned, but what I am saying is that there are many others... trying to crank up a law practice when you think you might win and have to go back into judicial office--
Speaker: That is really ironic, because my experience has been that most judges think lawyers are better paid than they are. They don't think it is a great sacrifice to go out and have a chance to practice privately. Well, Mr. Caballero, as I understand it, under Section 19, the judge could not resign and run for the legislature.
Raymond C. Caballero: --Under Section 19, it makes no difference if you resign. You are ineligible regardless.
Speaker: Right.
Raymond C. Caballero: So long as your term extends into the next legislative season.
Speaker: Well, on that score, the people of Texas, having adopted that, have expressed the view that if we elect you to an office, we expect you to stay there until the end of your term, and this is one inducement, if not a pressure, to keep you there, that you can't run for any other office.
Raymond C. Caballero: I can see them saying that, and I think it is a fine policy.
Speaker: They have said that in the constitution, haven't they?
Raymond C. Caballero: If it is such a compelling policy, why haven't they said that for the other officeholders? It leads you to believe maybe it is not such a valid reason.
Speaker: Well, I suppose a lot of people in Texas would say that is none of anybody's business except the people in Texas.
Raymond C. Caballero: That is true. That has been advanced. But under the decisions of this Court, when you do make a distinction between officeholders, they have to give you at least, even under the minimum level of scrutiny, some reason for it, some valid reason for it, and the state of Texas cannot. In the Fourteenth Amendment area, if you look at the interrogatories or if you look at the brief, they have not mentioned any reason for the legislative distinction in Section 65 other than the one you mentioned, Your Honor, and that was legislative oversight. That I contend is not a valid reason. They simply said it was not before the people in 1958. They are agreeing that they never even considered it, Your Honor, not that they had some reasons. Thank you.
Warren E. Burger: Do you have anything further, Mr. Allison?
James P. Allison: Yes, Your Honor. In the first place, appellees continue to state that the Article XVI, Section 65, provision prohibits testing of the water. And I continue to state that it does not. They have cited a provision of the election code that defines candidacy, but if you read that entire section, it concerns the financial requirements of candidates and states at the beginning of the section that the definitions therein apply only to that chapter. If you look at the state cases construing Article XVI, Section 65, you will not find a single case in which a person has been required to resign from an office in which they have made anything other than a clear and definite pronouncement of candidacy for another office. There is no situation in which a person has been required to resign for merely testing the waters. That is not the situation in Texas. In fact, the election code was recently amended to provide that if you try to file for another office before January 1, and might thereby inadvertently violate Article XVI, Section 65, that your filing will be declined, and it will be refused, and that you can only file after January 1, between January 1 and the first Saturday in February, thereby preventing any inadvertent violation of Article XVI, Section 65. Finally, also on the question of the burden, this case was decided on summary judgment, and the burden, if you use the rational basis test, was upon the plaintiffs to show that there was no rational basis for these provisions, and we have set forth in our brief several. Number One, Article XVI, Section 65, applies to your basic entry level stepping stone political positions, the precinct and county level positions, thereby providing a possible basis would be that the people of the state of Texas thought that it is more likely that someone entering at that level would try to run in mid-term, trying to step up while trying to hold onto the office that he had. They are entitled to make that distinction. Second, on statewide officials, such as the attorney general running for governor, they do not serve staggered terms. They are all up at the same time. Their terms expire at the same time, so they would only be running for another state office in the last year of their term, as provided in Article XVI, Section 65, anyway. We believe that the plaintiffs have not met their burden in this situation and that these provisions do not contravene the Constitution of the United States.
Speaker: Article III, Section 19, would not prevent you from running in the last year of your office for the legislature if your legislative term would begin at the expiration of your own term?
James P. Allison: It would.
Speaker: It would what?
James P. Allison: It would not prevent you from running in the last year. No, sir.
Speaker: Yes.
James P. Allison: You could run in the last year for the legislature.
Speaker: Well, you could begin running whenever you wanted to, as far as Article III, Section 19, is concerned.
James P. Allison: That is true.
Speaker: As long as the term for which you are running begins at the expiration of your own.
James P. Allison: That's true. And the terms all expire at the last--
Speaker: But that is not so under 65.
James P. Allison: --No, sir.
Warren E. Burger: Thank you, gentlemen. The case is submitted.


Warren E. Burger: We will hear arguments next in United States against New Mexico. Mr. Moorman, you may proceed whenever you are ready.
James W. Moorman: Mr. Chief Justice and May it please the Court. The Gila National Forest was created by a series of presidential proclamations issued between 1899 and 1910 which reserves certain public lands in New Mexico to entry. The question in this case is whether under the Doctrine of Reserved Water Rights, those reservation proclamations also reserved waters of the real members for the needs of the Gila National Forest for “instream flow” for fish and wildlife, for stock watering and for recreation. The case began before a Special Master appointed by the State District Court in New Mexico who concluded that the United States did indeed have such water rights for those purposes. The State District Court disagreed with the Special Master upon objection the objection of the State of New Mexico and held, first, that the United States did not have a reserved water right for recreation purposes for use in the forest. Secondly, the State District Court held that the United States did not have reserved water rights for stock watering purposes within the national forest and thereby leaving grazing permitees to obtain whatever rights they could under state law. Thirdly, the State District Court held that the United States could not have a reserved water right for an “instream flow” in real members for those or any other purposes and fourthly, the District Court without comment deleted from the Master’s proposed decree, a water right for wildlife.
Byron R. White: What does the record show as to why the “instream flow” issue was even in the case? Are there any upstream users to the forest?
James W. Moorman: There are no upstream appropriators, Mr. Justice White.
Byron R. White: Well, how would the issue as a practical matter ever arise? In the sense that somebody might want to --
James W. Moorman: There are some in holdings upstream which might at some point become a point --
Byron R. White: Or somebody might want to develop water above the forest?
James W. Moorman: The forest of course goes up to the crest.
Byron R. White: Well, how can the “inflow” issue ever be as a practical matter in the case because if it does not rain or does not snow, there is no going to be much of a flow and if it does, there is? What is (Voice Overlap) in this case?
James W. Moorman: Well, we have wondered in this case why it was challenged by New Mexico, but we do believe that --
Byron R. White: Challenged, the only reason they challenged is you claimed it?
James W. Moorman: That is correct.
Byron R. White: Well, why would you claim it this case?
James W. Moorman: Because we are required we believe to claim all of the water rights which we claim for the national forest in this proceeding. So if we do not claim the water right now, we would be forever foreclosed from claiming it later.
Byron R. White: Well, that is kind of a tough question “instream,” why would it ever arise here, who could ever possibly interfere with your “instream flow?”
James W. Moorman: A later appropriator upstream in an in holding.
Byron R. White: That is what you are really worried about?
James W. Moorman: Yes, Your Honor.
Byron R. White: Except you go to the crest?
James W. Moorman: Well, but of course we are interested in an “instream flow” below the crest. There are in holdings in the forest above the points in the real members..
Byron R. White: You mean fee title land?
James W. Moorman: Yes, Your Honor.
Byron R. White: Well, then I thought you said there were not any upstream users, they are not?
James W. Moorman: They are not users, but there are private lands upstream which could be points of diversion. In addition to that, someone--
Byron R. White: Could transport the water elsewhere?
James W. Moorman: That is correct.
Byron R. White: Except you would never let them do it across your property, across the national forest, they would have to get you permission.
James W. Moorman: Well, but of course if we did not have a water right, we would have not basis for denying them the right of it, Your Honor.
Speaker: Well your "instream" claim goes against downstream appropriators who are prior in time to the national forest proclamation?
James W. Moorman: I believe that the "instream flow” Your Honor, would be a great benefit to all the downstream appropriators, junior or senior because it is a non-consumptive use of water.
William H. Rehnquist: Well, but some of them probably do not think so?
James W. Moorman: I doubt that Your Honor because I am sure they want "instream flows” to reach them.
Speaker: Well, this goes against upstreamers?
James W. Moorman: The people who would complain about "instream flows” generally would be upstream junior appropriators.
Speaker: Straighten me out on my geography, does the members flow into the real ground?
James W. Moorman: It does not. It flows down into the desert and somewhere north of the Mexican border. It is not really tributary to any other stream.
Speaker: But the Gila flows in the Colorado?
James W. Moorman: The Gila does, yes Your Honor.
Speaker: That is from the other side of the divide there?
James W. Moorman: So I understand. The Supreme Court of New Mexico affirmed the District Court, holding specifically that the United States does not have any rights to maintain an "instream flow” in the real members and in addition specifying that the United States does not have reserve rights for the purpose of stock watering and recreation. The New Mexico Supreme Court reached this holding because it concluded that the purposes for which the United States claimed reserved rights from the real members for the Gila National Forest were not within the purposes for which a forest could be established under the Organic Administration Act of 1897. Under that Act in New Mexico’s Court’s view, a national forest can only be established for the two purposes of supplying timber or supplying water for downstream appropriators. The New Mexico Court reasoned that the reservation of land for the Gila National Forest could not have reserved water rights for stock watering or recreation as those were not the purposes of the reservation. The New Mexico Court also held that the United States could not reserve an "instream flow” for any purpose. The specific present rights which the United States seeks in the members are set forth at pages 192 and 193 of the appendix. There, as set forth, 91.18 acre fee of consumptive use, mostly for stock watering. There are also listed a few rights there on page 192 and 193 for domestic recreation which is another word for campground. There is one small right listed for tenth of an acre foot for wildlife. In addition, there are some rights listed for matters not in contention here for stock watering and residential and that would be at the ranger’s home with the fire tower. Also listed are the three non-consumptive inflow stream rights of 2 cubic feet per second each. The Special Master’s report also provided that the United States could have a year to present additional claims for the future needs of the forest if the United States chose to do so because the District Court, however, ruled as a matter of law that the United States could not have most of the rights it sought here, and because the United States appealed that ruling, the time never arrived for the United States to submit any evidence of future needs. However, if we prevail here today, Your Honors, we will submit evidence of some additional consumptive use, but no additional "instream flow” use.
William H. Rehnquist: Your "instream flow” claim is bounded on the downward side of the river by the boundary of the national forest?
James W. Moorman: Yes, Your Honor. It would be measured at three locations.
William H. Rehnquist: But would any of them be below the lower boundary of the national forest?
James W. Moorman: No, Your Honor. The governing law of this case, the Doctrine of Reserved Water Rights is not in dispute. It rests on a long line of decisions of this Court. Reserved water rights are often referred to as Winters Rights after the leading decision of this Court in 1908 in the United States vs. Winters which first fully enunciated the doctrine.
Speaker: Was it a long line of decisions?
James W. Moorman: Well, I believe it depends I guess on what you think is long, but we have at least 80 years of decisions now and there are six or seven Supreme Court opinions on the subject.
William H. Rehnquist: The subject water rights reserve by implication?
James W. Moorman: Yes, Your Honor. I think the doctrine was foreshadowed in the 1899 decision of United States vs. Rio Grande Dam and Irrigation Company which discussed a number of the authorities cited by New Mexico here. In that case, the Court stated, with regard to the water rights of the United States, that in the absence of specific authority from Congress, a state cannot by its legislation destroy the right of the United States as the owner of lands bordering on a stream to the continued flow of its waters so far at least as may be necessary for the beneficial uses of government property and I am citing 174 US at 703. Most recently, in 1976, this Court enunciated the doctrine in the case of Cappaert vs. the United States as follows. When the federal government withdraws its land from the public domain and reserves it for a public purpose, the government by implication reserves a pertinent water then unappropriated to the extent needed to accomplish the purposes of the reservation.
Speaker: You are not equating the propagation in Cappaert with the Gila trial here, are you?
James W. Moorman: I am sorry Your Honor, I did not understand the question.
Speaker: You are not equating the concern of pupfish in Cappaert with Gila trout here, are you?
James W. Moorman: In that case, the United States reserved water for the purpose of preserving the pupfish for somewhat limited purpose. Here, the question is what are the purposes of the Gila National Forest and whether the water rights which the United States claims falls within those purposes. It is the position of the United States that the reserve water rights it seeks for wildlife, for stock grazing and for recreation and for "instream flows” for those and other purposes such as fire protection or to provide a continuous flow of water, do indeed fall within the purposes for which the Gila National Forest was reserved. Since there have been some questions on it, I would like to take up first if I could the --
Byron R. White: Of course, failing that, you can always resort to imminent domain, can you not?
James W. Moorman: Only if Congress authorizes it and of course, we have no way of knowing what the ramifications of that would be, your Honor. It would be hugely expensive at this late date.
William H. Rehnquist: And very controversial, would it not? There has always been controversy as to what would be done with western land reservations and the western state centers and representatives have always kept the heat on the Department of the Interior and other executive agencies to make sure that there was proper consideration for the interest of private proprietors on western land.
James W. Moorman: I think Mr. Justice, you understand the politics very well.
William H. Rehnquist: Is that totally diverse from the law?
James W. Moorman: Well, I think Congress has never taken upon itself to give up the reserve water rights, so I think we must take the law as it stands in that way. They have certainly been aware of them for many, many years.
William H. Rehnquist: But there was also a considerable debate that is reflected in the briefs and opinions as to what the purpose of the national forest were going to be and how restricted or how wide open those purposes were going to be, was there not?
James W. Moorman: That is correct Your Honor. The New Mexico Courts held that the United States could not have an "instream flow” in the real members for any purpose whatsoever. We consider this both an absurd and a harsh result because it means that junior appropriators could take all of the water from the streams and dewater the national forest so there would be no water available for any purpose, legitimate or not. Now, as I read the brief of the State of New Mexico, they have conceded that this holding goes too far and that the United States can have an "instream flow” in the national forest for the appropriate purposes of the national forest. I further read their brief to their position to be that they simply differ with us as to what are the appropriate purposes of the national forest. They are taking a much narrower view than the United States does and we believe that this concession of the State of New Mexico alone requires reversal in this case and I refer the Court to footnotes 11 and 15 of the state’s brief. The state’s concession is well grounded because it is clear that the cases have not distinguished between flow and diversion rights. I have referred and quoted earlier the first case touching on the reserve rights doctrine, the 1899 decision in the Rio Grande Dam and Irrigation Company case where the water rights of the United States are referred to as the continued flow of its waters. Special Master Rifkin in his opinion in Arizona vs. California stated that one of the purposes of the national forest was to maintain natural flows and the Organic Act itself states as the second purpose for which national forests may be established for the purpose of securing favorable conditions of water flows.
Warren E. Burger: What did this Court do with Judge Rifkin’s finding or recommendation? I forgot how you described it.
James W. Moorman: This Court issued a decree, Your Honor, in which it stated, decreed that the United States had the right to divert water from the Gila and San Francisco rivers in the Gila National Forest and I am quoting now from the decree, in quantities reasonably necessary to fulfill the purposes of the Gila National Forest with priority dates of the date of withdrawal for the forest purposes of each area of the forest within which the water is used and that is 376 US at 350. Now, that tract almost exactly the language of the proposed decree of Special Master Rifkin which he attached to his report. In his report, Judge Rifkin stated more specifically what the purposes of the forest were.
William H. Rehnquist: And that was not adopted by this Court, was it? In its decree, it was not incorporated?
James W. Moorman: It was not incorporated, but it is our view that it had to be the predicate for the decree or the decree did not decree any rights. It only then stated rule of law if that was not the predicate for the decree. We have argued in our brief of course that that collaterally stops New Mexico which was a party to that case here. With respect to all the water rights we claim, Your Honor, whether they are "instream flow” rights or consumptive rights, we argue that the United States is entitled to such rights as they are all within the purposes of a national forest under the Organic Act. The Organic Act, Your Honor reads in relevant part as follows, if I may. No public forest reservation shall be established except to improve and protect the forest within the reservation or for the purpose of securing favorable conditions of water flows and to furnish a continuous supply of timber for the use and necessities of the citizens of the United States.” In the following paragraph of the Organic Act in relevant part, the Act, the Congress instructed, the Secretary of the Interior shall make provisions for the protection against destruction by fire and deportations upon the public forest and forest reservations and a little bit further, he was instructed that to make such rules and regulations and establish such service as will ensure the objects of such reservations, namely to regulate their occupancy and use and to preserve the forest thereon from destruction.
Byron R. White: Mr. Moorman, where did we get all these fancy names for the Acts like the Creative Act and the Organic Act and Multiple Use Sustained Yield Act? Somebody down in the department is charged with the responsibility for figuring out fancy names?
James W. Moorman: They are getting worse as I read them coming out of Congress, Your Honor.
Speaker: So you blame the lawmakers, do you?
James W. Moorman: Well, I would not blame this Court for that. Our first argument under the Organic Act, Your Honor is that those provisions of the Organic Act which call for the protection and preservation of the National Forest must by implication have reserved water for the National Forest. First the Congress stated as its first reason for the establishment of National Forest that they would be improved and protected and secondly Your Honor, the Congress twice gave clear instructions to the Secretary that he should take actions to protect and preserve the forest at one point referring to preservation of the forest as one of the objects of the reservations. Thus we argue Your Honor to the extent that the Secretary needs water so as to protect the forest it must be reserved or Congress’ plan would be thwarted. For example, the development and placement of stock waterholes is often the only way or the best way to insure an even distribution of the stock over the forest. A failure to achieve an even distribution of stock can quickly lead to overgrazing, growing land and erosion. Thus when the forest ranger locates a water source for stock he is not thinking simply of providing water for use, but he is also thinking of protecting the very soil the forest from erosion.
William H. Rehnquist: Was any of the land reserved in the Gila National Forest Reserve before the passage of the Organic Act?
James W. Moorman: No, the first proclamation was on March 2, 1899, Mr. Justice Rehnquist.
William H. Rehnquist: The Organic Act was what, 1897?
James W. Moorman: June 6, 1897. Now, this principle of preservation applies equally to something such as a Camp Ground although you might not think so at first. When a ranger locates his camp ground with a water diversion he thinks not only of servicing campers, but he also thinks of minimizing the risk of fire from the careless camper. By locating his diversion at a specific place, he not only attracts the camper to a safe location, he provides a source of water to put out the fire and clearly if protection of the forest and its resources requires an “instream flow” as opposed to a diversion there is nothing special about that.
William H. Rehnquist: Are you justifying the water for campers under the terms of the Organic Act?
James W. Moorman: Yes indeed, we believe that the forest are open for campers, that the use of water is one of the tools which the forest ranger must use to protect the forest from campers among other things. He uses it as incentive to guide their camping in certain spots where it is safe from fire and as a resource to help put out campfires. I should point out that the use of the forest by campers and other recreation is quite large. In 1976 alone, there were 822 million recreation days of uses on the National Forest.
William H. Rehnquist: What was it in 1897, the day Organic Act was enacted?
James W. Moorman: I do not know what the figure was in 1897, but we do know that the area of the Gila National Forest, I cannot speak for the members, was visited, there was the Gila Hot Springs which was later taken out of the forest in May into --
William H. Rehnquist: You think Congress really reserved the Gila National Forest as opposed to the various national parks for the purpose of use by campers?
James W. Moorman: No doubt about it, but I would like to draw the distinction between the two.
Speaker: About what?
James W. Moorman: The fact that I think that Congress reserves the National Forest for campers Your Honor?
Warren E. Burger: You are speaking now as of 1897?
James W. Moorman: Yes, I am. The Congress clearly did not wish the National Forest to be treated the way National Parks were, which is to say areas where the resources would not be used in an economic way such as cutting timber, range, or hunting of deer. However, it is very clear it seems to us that Congress did intend for the forest to be used, there were a lot of references in the legislative history, to the effect that the forest would be places of use and not places of none use and camping by all sorts of people was something that was done quite regularly in those days, not only for the kind of camper we think of today, but campers in connection with grazing and other uses. Recreation use of the forest was known at that time and furthermore I should say that the forest service assumed from the very beginning that this was one of the purposes of the National Forest and Congress in fact in 1899, two days before the first proclamation was issued for this forest, passed a law authorizing the Chief of the Forest Service to lease land in the National Forest adjacent to hot springs for the purposes of recreation. I wish to make one other argument under the Organic Act and that concerns the provision of the Act which refers to occupancy and use. The statute directs the Secretary to issue rules and regulations to regulate the occupancy in use of the forest and we would argue that to the extent that he needs water for that purpose, water is also reserved and it would work this way. For example, a ranger would often times go out and examine the range and determine that it is under utilized. Now, he may prevent over use by fencing, but often times the only way he can prevent under utilization of the range is by providing a water source. In our view the extent to which the forest service needs water for use in occupancy to preserve and protect and to promote all of the uses which Congress contemplated, water is reserved under the Reserve Rights Doctrine. Thank you, Your Honors.
Warren E. Burger: Mr. Simms.
Richard A. Simms: Mr. Chief Justice and May it please the Court. There are two fundamental mistakes in the United States' approach to the reservation of waters in National Forests. The United States views its powers over western waters as the rule instead of the exception and the US either ignores or hides from the fact that Congress explicitly relinquished control of the flow and the use of the waters in our National Forests of respective states. Compounding that fundamental, legal, and historical misapprehension of matter, the United States also ignores the fact that unlike any other Federal reservation of lands from the public demand, the National Forest were designed with respect to water to maximize water yield to appropriators under State Law. I would like to make reference to your question Mr. Justice White about whether or not there were any private users up stream. In the forest there are in the real members, drainage of the forest, there are 17,000 acres of patented free land. There are a number of diversions on some of these lands. Some of the diversions are being made by other parties to this adjudication against whom at this point in the litigation, the rights of the United States have not vested.
Byron R. White: So the “instream flow” is really a live issue?
Richard A. Simms: It is a live issue.
Byron R. White: In this case it is a practical matter?
Richard A. Simms: I believe it is and it is also live in the sense that if the Court were to recognize a minimum “instream flow,” we would effectively prevent the transfer of any water rights under State Law. That is just as much a part of the property right under State Law as is the right to divert. If we jump over to the Gila side in the same forest, you can see its effect on Phelps Dodge Corporation. Phelps Dodge spent $125 million buying up water rights transferring them to a point above certain forest lands, in total spent about $425 million, creating a smelting plant and subsequent to all of that the United States by filing a paper in the Office of the State Engineer in New Mexico informs Phelps Dodge they would now like to claim a minimum “instream flow” below that point of diversion.
Byron R. White: I have the feeling from your brief and some of the things that you have already said that in a way you challenge the whole theory of the reserve rights?
Richard A. Simms: No, we do not challenge the whole theory of reserved rights.
Byron R. White: You are saying it is just the extent of it you are arguing about here?
Richard A. Simms: That is true and unlike the assertion of the United States that there is no difference between us, there is a difference. There is a difference as to the way in which we apply the doctrine.
Warren E. Burger: You certainly take a position I think in your brief do you not, that since the Doctrine of Reserved Rights says it is exemption and it is contrary to the General Law that appropriation of water in the western States is governed by State Law, since it is an exception, the implied reservation should be minimally and narrowly understood?
Richard A. Simms: For that reason and other reasons Your Honor that we discuss in the brief.
Warren E. Burger: You do take that basic position?
Byron R. White: Do you fit in the Reserve Rights Doctrine in the sense that when the United States is reserved up, as created in National Forest that this is sort of an appropriation of water for beneficial uses, is that the way it fits in or not?
Richard A. Simms: I do not know if I understand your question Mr. Justice White?
Byron R. White: Well, I just want to know that the Reserve Rights Doctrine, does it fit in with what you feel as the way the United states wanted to handle this water or to dispose the water or is it just an exception to the general rule?
Richard A. Simms: No, we think it does fit in. We are not denying the existence of the Reservation Doctrine. What we are asking the Court to do is precisely what it did in Cappaert, to look at the authorizing legislation under which lands might be withdrawn from the Public domain and then apply the principle of the reservation doctrine. In this situation forests were created in large part to protect the watersheds in order to maximize water yield to appropriators under State Law. The National Legislator, the Secretary of the Interior repeatedly in his rules and regulations right out the door, 26 days after the Act was passed, noted that control of the flow and use of water was left to the individual states. By its assertion of claims to minimum “instream flows” it seems that the United States is going quite beyond what was intended before. At the same time, the decision of the New Mexico Supreme Court does not preclude the assertion of a claim to minimum “instream flows” provided that claim comes within the ambit of the purposes of the Organic Administration Act. No such evidence was put on in this case. The only evidence that was put on in this case related to the protection of fish and we submit that it is patently clear that the legislation and its history do not permit a reading that would say that fish purposes were among the purposes for which the lands of the forest could have been withdrawn. Your Honors, the United States' reply brief, while in my view says virtually nothing, I think it is probably the most telling brief in this case. In response to the legislative history of the Creative Act of 1891, that piece of legislation that authorizes the President to withdraw lands for National Forests, in response to some 40 pages of history relating to the Organic Administration Act of 1897, the Act which limits the purposes for which lands could be withdrawn under the 1891 Act, in response to the legislative history of all of the applicable rights of statutes up on into this century, in response to the history of relating to the decisions of the Secretary of the Interior, in response to the decisions and opinions of the general land office and indeed the United States Attorney General in its replay brief, the United States offers no rebuttal, it offers no legal history, it offers no law. Instead what the United States tries to do in our view is to muddy the waters, is to make it a little bit more difficult to see this case clearly. The United States explains that we have somehow ameliorated the effect of the New Mexico Supreme Court’s decision in our brief that we have made a concession. That is not true. Indeed subsequent to the decision in the case, the United States went before one of our State District Courts and put on evidence in support of what it says we just now said they can do in our brief. I do not think their understanding of the decision was any different than ours. The decision was rendered the way it was because there was no evidence in the record for any of these other matters. In the United States brief it also refers to a number of appropriation statutes. This Court has never before held that reserved water rights arise out of appropriations of money, reserved water rights arise out of withdrawals of land from the Public domain. The United States most importantly, also argues that the US never relinquished its rights, that somehow there is a broad power in the United States that makes these claims accessible now and because of that broad power, this Court should not strictly construe the statutes authorizing the withdrawal of land from the public domain. I think their interpretation of the law is most definitely wrong. They make reference to the Rio Grande Case. Indeed though in the Rio Grande Case and subsequently in another case called Gutierrez v. Albuquerque Land and Irrigation Company, this Court said this. Of course as held in the Rio Grande Case even a state as respect streams within its boarders in the absence of specific authority from Congress cannot by its legislation destroy the right of the United States as the owner of lands bordering on a stream to the continued flow of its waters, so far at least as maybe necessary for the beneficial uses of the government property.” They seem to say that we really do not need the reservation doctrine. That just by virtue dicta, the United States could by fiat and say, “We now want water in the west. We are going to use water for this purpose, therefore, it is ours.” The waters and the rest were severed. Plenary control was relinquished to the States. When Justice Sutherland used the adjective plenary, he used it advisedly. It means complete. When the waters were severed they were severed. In the United States' view there is some illogical, incomplete severance. There is no such thing in logic. It is also clear from a reading of Rio Grande that, that case was a case that says the United States may protect its right to navigability. That case got back to the Supreme Court three years later in 1903. If the Court takes a look at that opinion, it is clear also that, that case related only to navigability and not to none navigable waters. The important language with respect to none navigable waters is in Justice Sutherland’s opinion in 1935, in California Oregon Power Company v. Beaver Portland Cement. He said, “In the absence of Federal Legislation the States would be powerless to affect the Riparian Rights of the United States, but the authority of Congress to vest such power in the States and that it has done so by the legislation to which we have referred, cannot be doubted. There is no question that the severance of water affects the rights of the United States.” No question whatsoever. You cannot use Rio Grande as broad brush to somehow broaden the Reservation Doctrine. It does not work. Your Honor, I think what this case boils down to is an attempt by the United States to protect commendable environmental values through a scheme of legislation that was designed to do something else. We have laid out the history of the applicable legislation. If that history is understood, there is no way in my opinion that Your Honors could believe and reverse the decision of the New Mexico Supreme Court. It is simply impossible. If this case is decided on the basis of historical reality, instead of on the basis of the regrets of certain Justice Department Lawyers, now we are confident that the decision of the New Mexico Supreme Court will be upheld. Thank you.