Warren E. Burger: We’ll hear arguments now in number 758, United States against Raymond J. Ryan. Mr. Feit, you may proceed.
Jerome Feit: Mr. Chief Justice, may it please the Court. This case is here on certiorari to the Court of Appeals for the Ninth Circuit and raises as its basic issue, the applicability of the finality rule of Cobbledick against the United States, to an order of a District Court which denied a motion to quash a grand jury subpoena duces tecum and at the same time modified the terms of the subpoena. It is our submission that the court below in holding the order appealable prior to any contempt conviction, disregarded the central conditions of a consideration and finality upon which Cobbledick rests. The relevant facts are these. On March 5, 1968, respondent was served with a grand jury subpoena, directing to he produce before a grand jury sitting in the central district of California, those records in his possession, control or custody, either personally or as a corporate director of five enumerated Kenya corporations. These were the Ryan Investments Limited, Mawingo Limited, Mount Kenya Safari Club Limited, Zimmerman Limited, and Seven Up Bottling Company. Later that month, respondent moved to quash the subpoena, asserting among other things that its terms were overly broad, that he did not have control or possession of the records and that removal from Kenya as to certain of the records would violate Kenya law. On five dates thereafter, the first April 9, 1968 and the last July 25, 1968, proceedings were held before the District Court concerning this motion to quash. Arguments of counsel during these proceedings send it primarily on the issue of control, the relationship between internal revenue summonses, and the grand jury investigation, and the restrictions of Kenya law regarding the removability from Kenya of certain of the records without the authorization of Kenya authorities. In dealing with this latter restriction or latter consideration, namely the limitations of Kenya law at certain of the records, the Court at July 12, at the July 12, 1968 hearing, indicated that it was making a finding of control and suggested that the parties enter a stipulation under which none of the records would have to be removed from Kenya, but that instead, agents of the Government representing the grand jury would be permitted to inspect and copy all the sought after records in Kenya. The Court made it clear that if defense counsel agreed to this arrangement, he would be waving only the authenticity of the records and that all other objections would be preserved. The Government agreed to this procedure and directed that the parties try to work out some arrangement, mutually satisfactory ones. The Court further pointed out at this hearing that if an agreement could be worked out, presumably Mr. Ryan would not have to appear before the grand jury at all in connection with these documents.
Potter Stewart: Were these domestic corporations or with the --
Jerome Feit: These were Kenya corporations.
Potter Stewart: All of them.
Jerome Feit: All of them.
Potter Stewart: And what was Mr. Ryan’s connection with them?
Jerome Feit: The Government’s position was that Mr. Ryan was a Director who owned 80% of Ryan -- who owned 80% of the Mawingo which was doing business at Mount Kenya Safari Club but he owned 98% of Ryan Investments and that in fact he was in control generally of all these corporations.
Potter Stewart: What have you said was the Pepsi Cola Company.
Jerome Feit: Well, that was subsequently, that was in the original subpoena but the Court’s order which modified the subpoena excluded the Pepsi Cola and one of the other companies, the Zimmerman Company from the reach of the subpoena on the ground that Pepsi Cola Company apparently had gone out of business several years before.
Potter Stewart: That’s Pepsi Cola Company of Kenya.
Jerome Feit: Of Kenya, not the Pepsi Cola generally. On July 25, counsel reappeared before the Court, respondent’s attorney said that it could not agree proposed stipulation since he did not believe his clients could authenticate the record source. The Court thereupon entered the order which is here in issue and it's set forth for the Court’s convenience at 63 and 64 of the appendix. In this order, the Court first made clear that it found that respondent had control of the records of two or perhaps three as the way one reads it of the five companies originally specified in the subpoena, that Ryan Investments Limited and Mawingo Limited doing business as the Mount Kenya Safari Club. The order then contained three operative parts. Paragraph one, denied the motion to quash the subpoena. Paragraph two, required production before the grand jury of all the sought after records of the two companies except for the type restricted by Kenya law which were books of account, minutes of meetings and lists of members. And paragraph three, dealt with these restricted records in the following way and this is at page 64 of the record. It directed that respondent forthwith make application to the registrar of companies in Kenya to release the restricted records and provided further that if you are unable to secure consent, official consent for their release, he would be required and was required to make these records available to Government agents for copying in Kenya. Before the September 11 return date, respondent filed a notice of appeal.
Thurgood Marshall: Was there anything in the Kenya law that prevents them copying?
Jerome Feit: There is nothing in Kenya law. At pages 38 and 39 of the record, Kenya law provides that the records of corporations be open to all directors. And there is nothing in Kenya law as far as we were able to ascertain, although I think respondent contends the contrary which prohibits such copy.
Thurgood Marshall: Well, is there anything for the purpose that you will take them out of the country?
Jerome Feit: Yes. The -- without the consent of the registrar of companies, and this is set forth in the affidavit of Mr. William Shirley Deveral, which was a -- who was respondent’s counsel in Kenya and the appropriate applicable Kenya provisions provide that the books of account may not be removed from Kenya without the consent of the registrar of companies of Kenya. However, as I say that the directors have as the law specifically provides have free access to these records and they must have free access to these records under Kenya law.
Thurgood Marshall: What?
Jerome Feit: Well, because the law so provides and I think most --
Thurgood Marshall: What authority that we have over Kenya officials?
Jerome Feit: We have no authority over Kenya officials. Our authority is over Mr. Ryan against whom the subpoena was issued and upon whom the subpoena was served.
Thurgood Marshall: (Inaudible) try to get it and Kenya says, “No”, that’s it?
Jerome Feit: If Kenya said, “No”. Well, as I say, do you want to have two provisions? One, that they should make an application to Kenya authorities. If Kenya said, no we will not permit you to remove the records, that’s it. We cannot certainly, as we point out in our brief, it’s perfectly settled, we have no authority to direct Kenya to do anything and this was certainly not the purport of the order, the order was directed at respondent.
Warren E. Burger: Let me make sure I have this clear. Is there anything to interfere with Ryan’s rights to get these copies anytime he wants?
Jerome Feit: As far as our position is, the -- no, there is no limitation upon Mr. Ryan’s rights to provide copies of these records which are restricted. Now, I must add not all the records which were sought and which are covered by the order were restricted by Kenya law. For example, correspondence is also sought as to the Mawingo Company doing business as Mount Kenya Safari Club. There are no restrictions under Kenya law for the removal of those records. In specific answer to your question Mr. Chief Justice again, there was no limitation upon copying of the records which were restricted by Kenya law.
Warren E. Burger: But the process involved here is directed only at Mr. Ryan.
Jerome Feit: Only at Mr. Ryan. There's no question --
Warren E. Burger: To tell him to produce what he could get any day in the week for himself.
Jerome Feit: Precisely.
Warren E. Burger: For his own purpose.
Jerome Feit: Precisely.
Speaker: Where is he domiciled?
Jerome Feit: In Evansville, Indiana as far as in this country, as far as we know. He maintains an office and a residence, I also believe in California. And in addition, he is a world traveler. Of course our position is that -- well, let me just continue, that’s precisely what the order provided in part three of these two alternatives. One, to seek permission, if not authorized then to permit copying. Before the September 11th return date, respondents filed a notice of appeal and also sought extraordinary relief in the Court of Appeals to restrain the District Court from enforcing its July 25th order. After oral argument, the Court of Appeals denied the application for extraordinary relief, but extended the return date two weeks until September 23. Respondent then applied to the circuit justice for a stay and that was denied. On the September 23rd return date, he did not produce any records as the Court had directed nor had he permitted any copying in Kenya and there was some suggestion at the September 23 hearing that he had made an application to Kenya authorities for removal of certain of the restricted records and that had been denied. However, he had not made the records available for copying nor had he produced the correspondence essentially which was not governed by the restrictions of Kenya law. As I say, here before the grand jury to claim his privilege. Thereafter civil contempt proceedings were instituted by an order to show cause and hearings were held on several occasions in the fall of 1968. On December 10, 1968, on the Government’s motion, the order to show cause was transformed into an order to show cause why respondent should not be held in criminal contempt. Now, this transformation occurred because the Grand Jury Selection Act of 1968 was to go into effect on the 21st of December and this grand jury was to expire on that date. Also on December 10, 1968, an indictment was returned by this grand jury charging that respondent had falsified records which he had been ordered to produce before 1967 grand jury in the summer of 1967. That case was ultimately tried this past summer. Respondent was convicted and sentenced to three years to jail.
Potter Stewart: On what charge?
Jerome Feit: On the charge that in the 1967 grand jury subpoena which required production of Mount Kenya correspondence within this country that he had produced, but falsified the documents. He was convicted, as I say, in this summer and is presently pending on appeal.
Potter Stewart: For filing a false statement under --
Jerome Feit: For obstruction of justice.
Potter Stewart: Obstruction of justice. Is there any indication of what the underlying subject of the grand jury’s investigation was in this case?
Jerome Feit: Well, the authorization dealt primarily -- well, primarily interstate operation, transformation of gambling information, income tax violations perhaps. Beyond that primarily, I think counsels have stated to the Court, primarily the interstate transportation and information of gambling information under 1952 which was basically grand jury’s -- the nature of the grand jury’s investigation as I understand. Of course, grand jury’s investigation may well uncover other matters not specifically within that.
Speaker: Was he convicted of criminal contempt under this --
Jerome Feit: No, he has not been convicted. That’s precisely why we’re here. He was not convicted of anything. As a matter of fact, the -- what happened was when the grand jury, just before the grand jury expired as I said on December 10th, the proceeding was transformed into a criminal contempt proceeding and it dragged on with letters rogatory being sought by respondent, false interrogatories being sought by Government counsel until finally, in October of 1969 trial had been set for December of 1969 on the contempt, criminal contempt charge. Now, the grand jury had expired. The Court of Appeals stayed that proceeding and a year later, more than a year later, in May of 1970, it issued the opinion and order which is presently before the Court finding that the order was appealable despite the fact that there had been no contempt conviction and broad and vague on merits and it is that question which is here before the Court namely the interlocutory appeal problem before there has been any contempt conviction which leads me precisely into my basic argument. I think there is no dispute, the July 25, 1968 order is fully appealable if and when is held in contempt. The sole dispute is whether, it’s now appealable and its common ground that that depends upon the application of the Cobbledick case which this Court decided some 30 years ago, unanimously.
Hugo L. Black: Were the findings -- the District Court had made findings that this man had control of the records?
Jerome Feit: That’s right.
Hugo L. Black: But those -- if you prevail in this case, would those findings can be open for review on appeal?
Jerome Feit: Yes, on appeal presumed after a contempt conviction --
Hugo L. Black: Case what you mean --
Jerome Feit: Yes, our position would be that those findings are clearly not foreclosed, that they’re fully open to review on appeal from a contempt conviction and this is precisely one of the reasons why we say Cobbledick controls because one of the exceptions, the well-recognized and traditional exceptions to Cobbledick is the case in where, unless you permit an immediate appeal, Stack versus Boyle comes immediately to mind, where a bail was sought pending trial. Unless you get the appeal, that issue is mooted out, there is nothing further to decide. Our position is quite plain that the July 25 order is fully reviewable, on appeal, should respondent be held in contempt. As the Court will recall, Cobbledick involved the question of a District Court denying a motion to quash grand jury subpoena duces tecum. The Ninth Circuit in that case, that case was also a Ninth Circuit case had held there had no jurisdiction to entertain the appeals and dismissed the appeals. This Court affirmed unanimously and announced what has become the classic expression of the finality doctrine in criminal cases. The Court first addressed the historic roots, noting that the first judiciary act had contained a finality provision, but did not solely rely under historical considerations. On the contrary, it delineated the crucial policy considerations which give continuing vitality to the concept of finality under Cobbledick. That is the elimination of delay and harassment and costs of individual appeal of each order in a unitary court.
Speaker: We do not know under -- what is 1292 certificate?
Jerome Feit: We don’t think so, there was no -- and we find nothing that --
Speaker: Is that the section --
Jerome Feit: Well, respondent claims that the order in the Court of Appeal held here that the order was appealable under the interlocutory provisions of 1292 (a) (1).
Speaker: That's what you're talking about?
Jerome Feit: Yes. It seems to us quite clearly no. We find no case which supports the notion that 1292 (a) (1) applies to an order of a Court modifying a grand jury subpoena.
Speaker: Was an application made for a certificate?
Jerome Feit: As far as we know, there was no application made for certificate. In Cobbledick, the Court stated the basic rationale which we think governs here and Younger and Harris in a different, in a somewhat different context. The Court suggested the same type of consideration that is bearing that and I’m quoting from Cobbledick, “Bearing a discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship. The correctness of a trial court’s rejection even of a constitutional claim made by the accused in the process of prosecution must await its conviction before its reconsideration by an appellate tribunal. This doctrine was particularly applicable,” the Court was of the view, “in a grand jury situation because of its essential and primary function in the enforcement of criminal law as this Court has recognized repeatedly. Short 18 months generally and governed by a statute, an interruption of its work have to be avoided.” Cobbledick concluded that interruption of its proceedings by an appeal by a balking witness was permissible only after the witness had been held in contempt. At that point, even though the grand jury’s process was being interrupted such interruption was justified, otherwise, the witness would have no alternative but to abandon his claim or languish in jail. Obviously, in weighing the considerations of finality against immediate interlocutory review, this Court in Cobbledick took account of the deterrent nature of the contempt power. That the threat of the exercise of that power would have real potential in compelling an otherwise recalcitrant witness to produce or testify as ordered. This coercive potential, I submit, was deemed proper and was the balance struck in Cobbledick because of the overwhelming importance of the grand jury function and the need to prevent its interruption by the frivolous claim. It could only be interrupted, the Court found by those witnesses whose refusal to comply was of such paramount significance to them that they would refuse even though faced with a contempt citation, contempt conviction, only if that point, the detail -- that the scales fit and favor of appealability and permit interruption of a grand jury investigation. Subsequent decisions of this Court have strengthened Cobbledick are referred by DiBella against the United States where this Court held, appeals unavailable to challenge orders denying motions to suppress evidence where criminal proceedings were in frame at the time of the ruling. In the course of DiBella, the Court significantly pointed out that every statutory exception’s finality is addressed either in terms or by necessary operation to civil actions. There has been thus no retreat from the Cobbledick rule that the cost and discomfiture of a trial even as to a constitutional claim must be gone through before the witness challenging a grand jury subpoena may bring that matter to an appellate court. There is no sound reason, we submit, why these principles should not govern this case. We point out again that the question regarding control and all other issues involved in the July 25 order will be fully reviewable on appeal if respondent is held in contempt.
Hugo L. Black: What can you say about the Court of Appeals’ reasoning as to why Cobbledick did apply?
Jerome Feit: I find it somewhat mystified.
Hugo L. Black: Could you state it in your answer to it?
Jerome Feit: Well, the Court of Appeals stated and this is set out in precise language. It set out at 72 of the record and they said, “None of the cases cited had the District Court ordered anything other than compliance with the subpoena. In contrast, the District Court here modified the subpoena with respect to certain documents and directed the appellant to undertake steps in a foreign country to have those documents released by other persons for transportation to this country or for inspection in Kenya by United States agents. In directing that affirmative action be taken in another country, the District Court did more than deny a motion to quash. It in effect granted a mandatory injunction, which given full-effect, would require action by officials of the Kenyan Government.” My answer is to that I don’t know what that has to do with the question of appealability. The Court simply, it seems to me, by calling an order of a Court which has complete control over the grand jury process. The grand jury has no authority to subpoena documents without the authority of the court. And the court has full authority to modify and change, If a Court is limited by the notion that any modification which might have some affirmative effect, will result in appealability, we think that the courts will be hesitant to do what they should do, modify, change subpoenas of grand juries. I see nothing in the fact that it in the reasoning of the Court of Appeals nor in the cases which it cites which takes this out of the Cobbledick rule. If this takes it out of the Cobbledick rule, then I don’t know why a subpoena directing production of documents, for example which are located in New York City, which are sought by a grand jury sitting in Central District of California, is similarly not outside the Cobbledick rule. The problem here, it seems to me is that there’s no sound basis for continued adherence to Cobbledick if one can simply by talking about affirmative directions of an order transform that into a 1292 (a) (1) injunction. The history of 1292 (a) (1), neither the history of 1292 (a) (1) nor its application by this Court in the Bollinger case, Switzerland Cheese Association case have indicated -- has indicated that even in civil actions, the Court has been not prone to apply that provision except where there is truly an injunction, and here, I think to talk about this being an injunction in terms of a grand jury proceeding, would hamper and to make it quite easy, to avoid the grand jury investigation.
Hugo L. Black: Did the July 25th order have any independent source except the subpoena?
Jerome Feit: As far as I know, the July 25th order was based upon the subpoena because it part one denied the motion to quash the subpoena.
Hugo L. Black: What I’m getting at is supposing contempt proceeding was brought against this man for a failure to obey the subpoena, would the July 25th order would sustain a separate contempt proceeding?
Jerome Feit: No. The order of July 25th, what that did was, it took the subpoena and in our view eased the burdens of compliance. It transformed the subpoena into a different kind of a document retaining the grand jury function that it was perform, but there are no two independent documents now outstanding. In answer to your question there will be no basis for a contempt with regard to the subpoena and then a contempt with regard to the order. There would be one contempt.
Hugo L. Black: Well, it did order him to make -- take certain affirmative action in Kenya?
Jerome Feit: The order did, yes. It told him to apply the registrar of companies to produce or permit removal from Kenya a certain documents. If that request were denied, he was to permit agents and we believe agents of the grand jury, an argument is made here that these records would have been available for the civil tax.
Hugo L. Black: I thought what you say, is that although in part a mandatory injunction is really in essence of interpretation on what this man had to do in order to comply with the subpoena?
Jerome Feit: Precisely and as I say, my point was that the subpoena issues through the authority of the Court and the order of the Court, modifying the subpoena, requiring affirmative action, was merely a clarification which made precise and particularized the duties that the respondent was required to perform. And it’s our view that if that is a mandatory injunction, then any kind of modification by a judge of a subpoena can be classified the same way and that the policy decisions of Cobbledick and DiBella can be very easily avoided.
Hugo L. Black: What was the form of the proceeding that triggered July 25th order?
Jerome Feit: It was a motion to quash the subpoena duces tecum.
Hugo L. Black: Not a motion of the Government for supplemental relief?
Jerome Feit: Oh, no. The situation was this. The subpoena was served, as I said, on March 5, 1968. A motion to quash alleging a variety of grounds was made towards the end of March and thereafter, the five proceedings which led up to the July 25 order, where wholly in connection with the motion to quash the subpoena.
Potter Stewart: I suppose a subpoena itself could be considered an injunction under the reasoning of the Court of Appeals?
Jerome Feit: Well we --
Potter Stewart: Not, let alone a modification of it?
Jerome Feit: I assume so because any subpoena requires some affirmative action implicit in it or produce records, one must, if he has them in his warehouse, he must go to the warehouse and get them. So that, I think that the Court of Appeals it seems to me has opened the door for an easy way to avoid the very significant requirements of Cobbledick and which this Court has reaffirmed in DiBella and it is our view that 1292 (a) (1) does not provide the remedy nor the cost and delay argument that respondent makes. It is our view that this is nothing more than the Court exercising its authority, historic authority to promote the functioning of the grand jury. And we submit that the Court should vacate the judgment of the Court of Appeals and remand it with directions to dismiss the appeal. I would like to save the remainder of my time for rebuttal. Thank you.
Warren E. Burger: Very well, Mr. Feit. Mr. Miller.
Herbert J. Miller, Jr.: Mr. Chief Justice, may it please the Court. The subpoena which was served on Raymond Ryan on March 5, 1968 required the production of records, corporate records covering a period of 30 years, required the production of these records even though they were Kenya corporations and all of the records subpoenaed were in fact located in Kenya. Upon receiving the subpoena, Ryan as this Court has suggested in McFlow and Bryant out of respect whether tribunal seeking the records filed a motion to quash based on several grounds including oppressiveness, a violation of the law of Kenya. I submit that petitioners in later proceedings, if this is not considered an appealable order would be well advised when being served with the grand jury subpoena not to file a motion to quash and not to obtain an interlocutory ruling as to whether or not there should be compliance. The reason is very simple. That had this subpoena merely been ignored, there is no question in anyone’s mind to just look at it that this subpoena would in fact have been void and invalid, if not for being oppressive, and requiring the transportation of records 10,000 miles into the United States because the subpoena itself did in fact violate the law of Kenya.
Hugo L. Black: Are those issues before us in this stage, the Court of Appeals did not rule on this, read through oppressiveness or other possible illegalities of the subpoena, it simply dismissed the appeal?
Herbert J. Miller, Jr.: If the Court pleases, the Ninth Circuit Court of Appeals held that the order of July 25, 1968 issued by Judge Manuel Real of the District Court of California requiring respondent Ryan to travel to Kenya and produce 2,000 pounds of records at his own expense covering a 30 year period was an appealable order. And they further said that, it was appealable because it was a mandatory injunction requiring Mr. Ryan in effect to sue and libel, to act as an agent of the grand jury to travel 20,000 miles, to make application to officials of a foreign country, to attend and superintend the packing, the crating and the shipping of some 2000 pounds of records to the United States. And if he does not, if he was unable to obtain the permission of the Kenya officials then he was required to make those records available for copying and I quote, “Agents of the Department of Justice and/or the Treasury Department.” There is no limitation in that order of July 25, 1968 that these records are to be treated as though they were subpoenaed by a grand jury, that they are under the secrecy provisions of 6 (e) of the criminal rules as required by the grand jury and in fact, there was no limitation on what right the Government had with respect to those records. They could publish them in a newspaper. They could use them for a civil proceeding. They could use them for any purpose even though ostensibly this proceeding began as a grand jury proceeding. If I may address myself to the order that we’re talking about and the subpoena, the District Court himself made it abundantly clear on several occasions. He said, “It is not the subpoena that is the subject of the contempt charge. It is not the subpoena that we are talking about. We are talking about the Court’s order of July 25, 1968. It is the Court’s order that Mr. Ryan has to comply with. It is the Court’s order that Mr. Ryan is in contempt of. It is the Court’s order that the order to show cause was directed against as to whether or not Mr. Ryan had in fact violated anything issued by the Court.” And the Court also stated in a colloquy that the order itself of July 25 was like a civil injunction. Therefore, once the civil injunction was entered, compliance must be had. Failure to comply would result -- failure to comply would result in a finding of contempt and the findings and the legal issues could not be re-litigated at the contempt hearing. Thus, the -- I know it and incidentally, I know that the Government argued that the finding and the various legal issues would reviewed upon -- reviewable upon appeal if Ryan had in fact been held guilty of contempt and yet there is respectable which looks to the contrary and it has been decided by this Court. It says, when a civil injunction has been entered as here and there is a failure to comply that then becomes a contempt and you may not re-litigate the factual or the legal basis of that order even though it may have the order may be reversed on appeal or by the Supreme Court.
Warren E. Burger: Mr. Miller, is that order anymore than an implement to carry out the subpoena duces tecum?
Herbert J. Miller, Jr.: Yes sir.
Warren E. Burger: In what respect?
Herbert J. Miller, Jr.: It is -- It goes far beyond the capability of any subpoena that I have ever seen in my experience at the Bar. I have -- in the first place, it is an order requiring a man to make an application to a high official of a foreign government. That’s the first --
Warren E. Burger: Does the subpoena not to do that by clear implication?
Herbert J. Miller, Jr.: No sir, it does not. Because what the subpoena says, is that you produce the records. Ryan, if he had custody and control could produce the record or where it's not in violation of the law.
Warren E. Burger: Doesn’t that command that the subpoena mean when it directs that you produce the records to do everything necessary to accomplish that end whatever it is?
Herbert J. Miller, Jr.: Yes, Your Honor. Yes, I --
Warren E. Burger: Apply to the foreign government to apply to warrant state department to make a request to the foreign government, whatever is necessary?
Herbert J. Miller, Jr.: Yes, sir. He would have to take those steps that were within his power. Now, let us look at the order itself. I submit, if the Court please, that order went far beyond any legitimate requirement that can be imposed by a subpoena. Now, if I may, one, I do not believe that any District Court or a grand jury or agent of the Department of Justice acting as an agent of the grand jury has the authority to issue a subpoena without prepayment of cause which requires an individual to travel 10,000 miles over to a foreign country and return 10,000 miles back carrying with him 2,000 pounds of records for getting the application to the foreign government for the time being. I don’t believe that there is that authority. I know off no case and we challenge the Government to supply us with any case in which that was in fact a requirement of a subpoena, and they have come forth with none. And thus, if the Court please, equating the order and subpoena together, I think the subpoena goes far beyond any right that a grand jury have to force an individual to sue in labor as would be required under the facts of this case. To forth with as the order required, leave, drop that everything the citizen is doing, drop everything the citizen is doing, go to a foreign country 10,000 miles, 25 hours of air flight to get to Kenya, 25 hours, obtain the records, freight them up, bear the responsibility of bringing them back to the southern or the central district of California and to do this without any prepayment of expenses. Any offer of round trip payment of the aircraft -- fare. In other words, if Ryan were person an abject poverty, there isn’t a Court in this land that would permit such a thing to happen. But because he is supposedly a man of some means, then it’s alright that he has to spend his money, thousands of dollars required for air fare, the thousands of dollars to hold 2000 pounds of record back to the United States. That is what the grand jury subpoena required and that is what the July 25 order requires.
Warren E. Burger: Where do we find in this record that it’s necessary that he’s commanded to go to Kenya? Can't these things be done by correspondence or surface travel?
Herbert J. Miller, Jr.: If the Court please, it could not be done by a surface travel, I don’t believe.
Warren E. Burger: Its that been -- is that issue been litigated and are there findings to that effect?
Herbert J. Miller, Jr.: There are no findings, there are no findings. The only finding in this record, if the Court please, is that Ryan at times before and after the commencement of the Government investigation had custody and control of these records. And I submit if the Court please, the record is clear that the IRS investigations commenced in 1964. So what the finding is that in sometime before and after 1964, he had custody and control of the record. Of course, I challenged that in the Court of Appeals and they didn’t get it to it. But if I could address myself to the appealability factor here because I think it bears very much on the type of conduct required here. I would be concerned if this Court or if the Court of Appeals have no supervisory power over the utilization of subpoena to require an individual, for example, to go into an FBI office and give a voice exemplar. The grand jury subpoena requiring that, so that his voice exemplar might be compared with an intercepted telephone conversation to see whether he was in fact the individual. I think we are entering into the period when the grand jury is moving from its original purpose and moving out now into a position where it is being used more and more as an investigative body rather than merely a body to consider whether or not there has been violation of crime. And I submit, if the Court please, that you -- that this order and this subpoena here is broader than anything that I have ever seen in my experience, in terms of requiring an individual citizen to sue, to labor, to act as an agent of the grand jury, and in effect to investigate for the grand jury. And I submit that the subpoena power does not permit that and I submit that the order itself that the Court could not in fact enter an order of this nature.
Thurgood Marshall: But Mr. Miller, it doesn’t mean that those record goes to the grand jury at all. It needs -- it goes to US Attorney to look at it.
Herbert J. Miller, Jr.: It either goes --
Thurgood Marshall: It might never get to a grand jury, isn’t that right?
Herbert J. Miller, Jr.: That is correct. There is no requirement that the orders -- that the records available in Kenya make to be made available in Kenya, be returned to the grand jury or the copies be returned to the grand jury. All it was that the record be turned over to agents of the Department of Justice or the Treasury Department for copying and this, I submit, went far beyond any subpoena requirements that could come out of the grand jury subpoena. Grand jury subpoena requires those records be submitted to the grand jury and produce there. This order did not require that. It went far beyond what was required. The -- on the issue --
Byron R. White: Mr. Miller.
Herbert J. Miller, Jr.: Yes sir.
Byron R. White: The issue here is appealability?
Herbert J. Miller, Jr.: That’s correct.
Byron R. White: Not whether the order was valid or not?
Herbert J. Miller, Jr.: That’s correct.
Byron R. White: Would you say that any -- in an ordinary civil case, any order for inspection and copying of records or an order for a physical examination, for example, would be appealable?
Herbert J. Miller, Jr.: On the contrary, it would not be appealable.
Byron R. White: But it would be an order, an affirmative order.
Herbert J. Miller, Jr.: It would be an affirmative order --
Byron R. White: But why isn’t that an injunction?
Herbert J. Miller, Jr.: It is because it is in the nature of an order entered in the course of civil litigation and the requirements there are that the way the order is enforced is that the pleadings of the party be stricken or that some other action be taken with respect to the litigant as distinguished from here where you have an order directed to a particular individual. I would submit, if the Court please --
Byron R. White: No, there is nothing that is more of a specific order to a specific individual than to submit to a physical examination?
Herbert J. Miller, Jr.: Yes sir and I would -- I would submit if that order were directed to the plaintiff in a case, and if he refused that under the practice certainly of the federal rules that that individual will just have complaint stricken. That they would not -- it would not be treated in effect as mandatory injunction that he be required to comply with the physical examination. But --
Byron R. White: You think the only -- that there wouldn’t be any possibility of contempt, is that it?
Herbert J. Miller, Jr.: The order could be so phrased whereby it could be contempt --
Byron R. White: But what if it were --
Herbert J. Miller, Jr.: Sir?
Byron R. White: What if it were, appealable?
Herbert J. Miller, Jr.: If it were and if it were a mandatory, if the Court specifically said, as was in this case, that you shall forth with take yourself to a doctor’s office and then right then, under those circumstances comparable to your issue here, I think, you would have a question of an appealability. And the reason is, if the Court please, Congress itself which has established the appellate jurisdiction has said, that certain interlocutory decisions are appealed, that’s 1292. Now, the interlocutory decisions granting an injunction or a mandatory injunction are held according the Congress requirement then may be appealable. Now in this case, we have heard much of the Cobbledick case and there, you did not have any aspects of an injunction or a mandatory requirement than an individual to take action. There, all you had was a denial of a motion to quash a grand jury subpoena and the decision of this Court was limited to the question of whether that was a final order, whether it was a final order under 28 U.S.C. Section 1291.
Byron R. White: Now, what does subpoena mean? Doesn’t the subpoena pretty well command somebody to do something?
Herbert J. Miller, Jr.: Yes, sir. It does.
Byron R. White: And you’re subject to a contempt order, if you disobey it?
Herbert J. Miller, Jr.: Correct.
Byron R. White: So what’s the difference between a subpoena and an order -- an ordinary subpoena and what happened in this case, in terms of whether it commands certain affirmative acts or not?
Herbert J. Miller, Jr.: MBecause, if the Court please, the man was under no requirement to turn records over for copying, for example, in Kenya. There was no requirement in that subpoena to (Inaudible) for copying by any agent of the Department of Justice or the Treasury Department.
Byron R. White: But if it’s a civil litigation, if the Government had applied to inspect and copy records in Kenya, and the Court had ordered Mr. Ryan to turn them over for inspection and copying, there would have been no -- it would not have been an appealable order?
Herbert J. Miller, Jr.: If the Court please, depending on the type of order and depending on the framework, for example, if it were in fact an independent action. Suppose the Government in this case, instead of going to the grand jury decided to apply for letters rogatory. Then, I can see that there would in fact when the letters rogatory had been entered in the requirements made then I can see that you would, in fact, have a final order that would perhaps fall under the provisions of 1291 and would be infield because then you’ll get into the question of what is this in fact such an independent proceeding as will support an appeal. Now here on the contrary, you have the different situation where you have a Court order compelling conduct that is not in fact required by the original subpoena and in fact, could not be required by the original subpoena. And I submit, if the Court please, once that happens you go far beyond any requirements of merely complying with the subpoena or not, you have moved out into a separate independent proceeding where an individual at his own expense has to fly 20,000 miles to get 2,000 pounds of records and bring them back or make them available to the people in a foreign land.
Harry A. Blackmun: Yes, Mr. Miller but isn’t he’s doing business in Kenya his own doing?
Herbert J. Miller, Jr.: If the Court please, the fact that he was in Kenya was in fact his own thing to be sure, yes.
Harry A. Blackmun: Well, I failed to follow you on why then it is such an imposition on him to produce records which may have some consequence in this investigation?
Herbert J. Miller, Jr.: The imposition, sir, is that he is required “forthwith” to make application and to do the things required in the order. The mere fact that he was in Kenya or had been to Kenya, I do not think makes any more less onerous the fact that he is required to produce these corporate documents from Kenya and plant them in the southern district of California.
Harry A. Blackmun: Well, then we might come back of course to the Chief Justice’s inquiry. Isn’t this order of which you complain nothing more than an implementation to the original subpoena?
Herbert J. Miller, Jr.: Sir, I believe it goes far beyond the original subpoena because it does what the subpoena could not do. It requires these records be made available to any agent of the Department of Justice or the Internal Revenue Service, without restriction. And the Court of Appeals years ago in In Re Grand Jury, 229 F2nd said you cannot utilize the grand jury subpoena in that matter, it’s improper. That’s been the law for years and that is where this order has gone far beyond, what a subpoena could in fact do. And I would like to suggest to the Court further, that the -- on the question of custody and control. There is no finding that Ryan was in fact, the director of these companies nor could, in fact, there be such a finding. And absent the fact that there was such a finding, it is a violation of Kenya law for him to attempt to make certain of these records, namely the books of account available even in Kenya for copying. And this argument is set forth in extensive in the brief which we filed in the Ninth Circuit Court of Appeals at pages 22, 23, and 24, which I think clearly demonstrates that even this order as currently drafted violates the laws of Kenya.
Byron R. White: Mr. Miller, let’s assume that in a criminal case, the Government subpoenas a witness not a party.
Herbert J. Miller, Jr.: Yes sir.
Byron R. White: Subpoenas a witness or applies for an order to -- for the witness to produce certain records. Isn’t there a procedure for producing records at a specific location and permitting inspection and copying?
Herbert J. Miller, Jr.: There is under Rule 17.
Byron R. White: 16?
Herbert J. Miller, Jr.: Rule 17. Well, Rule 16 applies to certain statements and document, but Rule 17 submits the Court to -- when a subpoenas been issued to require the records be produced in advance of trial at a specific date and time, but that is not a grand jury subpoena, if the Court please.
Byron R. White: I understand that.
Herbert J. Miller, Jr.: Yes, sir.
Byron R. White: But would that kind of a refusal to quash that kind of a subpoena which would demand the inspection and copying or permitted inspection and copying, would that be appealable?
Herbert J. Miller, Jr.: No, sir. I don’t believe it would because it is unlike the case here where the grand jury subpoena subject to the strictures of 6 (e) has been totally violated by the order of July 25 which requires the records be made available to either treasury or Department of Justice agents. No limitations, no requirement the record to be produced before the grand jury at a date certain. No requirements that these records be kept in camera and subject to the rules of 6 (e) as required by the federal rules of criminal procedure. That this order goes far beyond what is compellable by a grand jury subpoena.
Byron R. White: Well, I suppose the defendant in an ordinary criminal case would make the Government produce for inspection and copying certain documents?
Herbert J. Miller, Jr.: Correct.
Byron R. White: Under 16?
Herbert J. Miller, Jr.: Yes, mostly to it.
Byron R. White: And the Court will issue an order directing the Government to, at a specific time and place to produce for inspection and copying of certain documents.
Herbert J. Miller, Jr.: Yes.
Byron R. White: Appealable?
Herbert J. Miller, Jr.: No. It is not appealable Mr. Justice White, for the simple reason, it is part of the matters proceeding to a hearing. This case was not that. This is turned into a completely separate, independent action to compel this individual to produce records. I would like to refer also to the fact that when we’re talking about the offer of the Federal Government to make these records available in Kenya as the Government has suggested, that offer was only if Ryan would state, would authenticate the records. The trial court was informed he could not authenticate those records and consequently the Court said, “Well alright, we will proceed to enter the order that we have.” The -- getting back to the question of appealability. Under Cobbledick, the sole question was one of finality under Section 1291. That is not this case. That was solely a motion, a denial of a motion to quash a grand jury subpoena. This was not that. This was an order which directed an individual forthwith to make application to a foreign official, to be in charge of bringing back 2,000 pounds of records located 10,000 miles away and to do so --
Warren E. Burger: Does that tie anything to the subpoena? Did not the subpoena by implication require him to do precisely that?
Herbert J. Miller, Jr.: The subpoena would by implication require to do that except, if the Court please, the subpoena would not, as I pointed out before, apply to the requirements that these records be made available to other people.
Warren E. Burger: But does that make it any more or less oppressive Mr. Miller, the fact that other people can look at it?
Herbert J. Miller, Jr.: Well, if there --
Warren E. Burger: And the other people being officials of the Government?
Herbert J. Miller, Jr.: Well, let me say this. I’m saying that the subpoena is oppressive, I want the Court very clear on that, I was trying to make what I thought was the distinction between what the subpoena could require and what the order did in fact required.
Warren E. Burger: But the coercive impact of the order is no greater and broader than the subpoena, is it?
Herbert J. Miller, Jr.: The -- in effect, the subpoena would require that type of action to be taken except that the -- when a subpoena is served, you have to use what capabilities you have to produce the records, granted. I say, that this order went far beyond the subpoena because the subpoena did not even by implication require an application be made to a foreign official of Kenya. Now if in fact, Ryan had to do this to get the records, he might have made that application. He might have been required to make that application but this order made it specific. Furthermore, he was required to turn the records over. He was tried forthwith to make that implication. There was no time schedule involved. Furthermore, he was required to bring the records from Kenya and be in charge of those records to the Court in Los Angeles. Now, granted the subpoena would requires the -- require latter part but I would submit to the Court, that even though the subpoena requirement, this subpoena it goes far beyond any that I’ve ever seen in my experience and I wager as I said before, we try as challenged the Government to show us a comparable expression or requirement of any subpoena or court order to produce documents and they came up with exactly no cases as I knew they would. Where other cases have indicated that if subpoena cannot compel an individual to sue and labor, to act as an agent to obtain records, to get records, to get something that he cannot, does not have right at that available time. The Monroe case was cited, in fact, Justice Frankfurter’s comments in the dissent in the placement case. All point to the direction I’m saying, that you cannot use the grand jury or its subpoena power or an order, a separate order which may have been an outgrowth to the grand jury subpoena to require an individual to do the things which were required here either by the order or the subpoena. And then to say that if he doesn’t do it, then he is guilty of contempt and has no chance to even litigate those factual issues at the time of the contempt here. As the Court, I’m sure is aware under Maggie versus Zais in bankruptcy turnover orders where the Courts have those years, entered an order saying, “You turn over these records or these assets.” That order is forthwith and immediately appealable and then when the case goes back down, the findings involved in that case are not re-litigated at the trial court level. They are considered res judicata and the Government has tried to put Ryan --
Thurgood Marshall: Are there some records in Kenya that he could have had mailed, correspondence things like that?
Herbert J. Miller, Jr.: I beg your pardon, sir.
Thurgood Marshall: Didn’t Ryan have some records in Kenya that he could’ve gotten by his request by mail?
Herbert J. Miller, Jr.: I'm certain, absolutely not. The -- we challenge and have below, the finding that he had custody and control of these records.
Thurgood Marshall: Well, do you deny that there are any records in Kenya that he had custody and control of?
Herbert J. Miller, Jr.: Yes.
Thurgood Marshall: You say that there are none of them?
Herbert J. Miller, Jr.: There are -- Well, there are probably records there but he doesn’t have any control over those records.
Thurgood Marshall: Why isn't that a perfect defense?
Herbert J. Miller, Jr.: Well, it is, if the Court please, we filed --
Thurgood Marshall: Why don’t you use it sometime? Why don’t you use this sometimes?
Herbert J. Miller, Jr.: I filed a motion to quash and submitted an affidavit from people in Kenya which established this fact and the Court ruled to the contrary.
Warren E. Burger: Mr. Miller, if hypothetically, Mr. Ryan needed and wanted these records for his own purposes in the United States, do you say he could not get them?
Herbert J. Miller, Jr.: I certainly do and I submit to the Court, he could not do so. In fact, he filed an affidavit with the internal revenue service two years before the subpoena in service and the subpoena in question was served, filed an affidavit in October or November 1968.
Warren E. Burger: Well then, why should this have been litigated in the first place at the level where it seems to me fundamental that no man can be held in contempt for not performing an act which he cannot perform?
Herbert J. Miller, Jr.: I couldn’t agree with the Court more and I did make a motion to quash based on that. And of course, all of my evidence, I had to get in affidavit form because all of the witnesses were in fact in Kenya. And I filed my affidavits and the Court -- and the Government filed other affidavits. And the Court read the affidavits and says, “I find that at times before and after the commencement of the investigation of Mr. Ryan by the federal Government, he had control of these documents. And of course, I challenge that and I think it’s wholly wrong but now, what happens. So now if there’s an order to show cause why he should not be held in contempt and the trial court is saying, “Ah, you cannot re-litigate the question of custody and control.” The only thing that this contempt trial is going to be the Government is not going to have to prove that he was guilty of contempt beyond reasonable doubt or had custody and control beyond the reasonable doubt. The Government, all they’re going to have to show is that he had the capability to produce the records on July 25 whether he had not done something to turn it over and that, if the Court please, demonstrates the terrible dilemma in which one is placed by filing a motion to quash.
Speaker: Well, the Government fully concedes and as I understood Mr. Feit that if they prevail in this case, the custody and control issue can be litigated, it can be reviewed?
Herbert J. Miller, Jr.: If the Court -- yes, if the Court please, could be reviewed on appeal.
Speaker: On appeal, yes.
Herbert J. Miller, Jr.: I submit, they may say that to this Court here but there is very substantial body of case law which would indicate that it cannot be reviewed on appeal. Now, whether the commitment here would permit us to raise it on appeal but even on appeal, if the Court please, that’s not sufficient for my client, because I think he would be entitled to litigate that at the trial level. I mean, finding a man in contempt is a very serious procedure. And the fact that he had now is faced with the argument that this res judicata, I mean, it will be held in contempt on that issue because he can’t even re-litigate it and I just don’t think that this is a fair or proper type of proceeding. The Government cannot have it both ways. They can’t say that this is res judicata at the trial level and then argue to this Court that it’s not an appealable order. I mean bankruptcy orders have established these years ago. If this is an appealable order, then that ruling below is res judicata. And that’s why I submit, we took the appeal because of this and I submit the Court of Appeal held it was an appealable order.
Warren E. Burger: Thank you, Mr. Miller.
Herbert J. Miller, Jr.: Thank you very much.
Warren E. Burger: Mr. Feit, you have three minutes left.
Jerome Feit: Yes, I’d like to make two points. First, in volume three of the original record which is here, I’ll refer the Court to pages 112 in which the United States Attorney makes it quite plain that these records would be used only for the grand jury purpose that is those who inspect the records in Kenya. Again, on pages 90 and 91, where the District Court further makes it plain that these records and that the agents who were to examine them were agents in fact of the grand jury and there would be no violation of Rule 6 (e). It seems to me that the thrust to the argument here essentially is that Cobbledick really should not be followed. As we have indicated, there is no question that this issue would be resolved or would be litigated on appeal, the validity to the July 25 order. The question is to whether or not it could be reviewed in contempt proceeding. It seems to us that it’s the -- that was from April to June 25, 1968, the issue of custody and control was litigated. Just like a motion to suppress it seems to us, if respondent has additional evidence which would suggest that he does not have custody and control as the Court in a motion to suppress which had the Court to change its mind. However, it’s clear that this is litigable on appeal to a Court of Appeals.
Warren E. Burger: On appeal from what, Mr. Feit?
Jerome Feit: On appeal from the finding in contempt which is precisely Cobbledick and precisely what this Court has reaffirmed in cases since Cobbledick and I may have one --
Potter Stewart: Is there a further opportunity for hearing on the issues of whether or not he has control and so on in the District Court before the finding of contempt?
Jerome Feit: Well, I would assume that this would -- our view would be.
Potter Stewart: Otherwise, the appeal is very meaningful thing if you have any record --
Jerome Feit: Well, the appeal from the contempt and he -- counsel refers to cases which I don’t know of and which he refers to cases in which that order of July 25 would not be reviewable on appeal. He refers to cases, I know of no such cases involving grand jury subpoenas and orders enforcing grand jury subpoenas. What happened it seems to me Mr. Justice is that, the initial determination was made that he had custody and control, an opportunity to litigate that on five occasions from April to July. I would take it. It would be something like law of the case not res judicata. Quite clearly, if he could come in and say at that date, “I have something new. I can show you by an evidentiary basis that I did not have custody and control of the records as of the date of July 25th.” It seems to me, just as in a motion to suppress where the Court could reconsider, the Court could say, “We reconsider that, and we find that you do not have control. Therefore, there would be no basis for contempt.” The Court on the other hand could well say, “You haven’t submitted enough for me to reopen this. I proceed with the contempt proceeding. The Government has the burden of showing guilt beyond a reasonable doubt.” And on appeal from the contempt proceeding quite clearly, the July 25, 1968 order would be subject to full review. And again I say counsel referred to some cases to the contrary, “I know of none involving the area of the grand jury subpoena and the enforcement thereof by the District Court order.”
Warren E. Burger: Now, --
Jerome Feit: Thank you.
Warren E. Burger: -- going to the points of the contempt proceeding in the District Court and of course that’s where it would be.
Jerome Feit: Precisely.
Warren E. Burger: It would be triggered by an order to show cause, wouldn’t it?
Jerome Feit: Yes, as it was here.
Warren E. Burger: Now, is there any limit on what cause, he could show as an explanation why he had not complied?
Jerome Feit: No, there’s no limitation --
Warren E. Burger: Could he open up the whole factual situation?
Jerome Feit: There’s no limitation except as I suggest that the way the District Court runs the contempt proceeding. The District Court can say, “I don’t know what the evidence of control that Mr. Miller, might or might not bring out, the proceedings leading up to the July 25 order were essentially arguments of counsel would some testimony but very little and affidavits in produced. Yes, the District Court could entertain it seems to me all of these matters and say, “Well, if you have something to show that you didn’t show me before, that suggests that you have no control, I’m going to re-litigate that matter. Well, I’m suggesting is whether the Court does or does not, that issue would be fully reviewable on appeal.
Warren E. Burger: Thank you, Mr. Feit.
Jerome Feit: Thank you.
Warren E. Burger: Thank you, Mr. Miller. The case is submitted.


Warren E. Burger: Next case on for argument is number 436, Davis against Mobile County Commissioners. Mr. Greenberg you may proceed whenever you’re ready.
Jack Greenberg: Mr. Chief Justice, may it please the Court. This case is here on writ of certiorari to the United States Court of Appeals for the Fifth Circuit. The area under consideration is Metropolitan Mobile which is portrayed on this map behind me with a school population in excess of 50,000 students. This 50,000 is out of a total Mobile County school population of approximately 70,000 students. The black-white ratio in metropolitan Mobile is almost exactly 50-50. In the system as a whole, city and rural, the black-white ratio is about 60% white, 40,000 students, 40% black, 30,000 students. 85% of the black students were about 26,000 in the system reside in metropolitan Mobile. At all stages of the litigation, the Courts and the parties including the school board have treated metropolitan Mobile as a separate matter. The proceedings which have resulted in this writ of certiorari focus on integration of the elementary schools in metropolitan Mobile although facts just furnished to us by respondents and set forth in a supplemental brief filed Saturday indicates the junior high schools and the high schools there in which a substantial degree of integration was supposed to have been accomplished are in very substantial measure identifiably black. The question presented to this Court is whether in this school system, where the entire spectrum of school assignment techniques have been used in the past to maintain racial segregation, noncontiguous zoning, satellite zoning, pairing, busing, a bewildering array of deviations in grade, structure, portable classrooms, school closings, school construction. Whether those techniques, which have been employed in the service of segregation now ought to be used in the service of integration or is the sole standard to be an innovation. That is the exclusive employment of the neighborhood school, whatever that means, now suggested by the United State’s and the respondents as a method of school assignment even though it results in an exceedingly high degree of racial concentration. Some children have, in the past in Mobile sometimes been assigned on the basis of some concept of neighborhood among a number of other assignment factors, but as the sole means of assignment, it is an innovation. It might be added at this point, at least I would like to add at this point parenthetically an answer to the argument which emerges from this sharp departure in administration which was anticipated yesterday by counsel for the Charlotte School Board who stated and by Mr. Blake who stated today two wrongs do not make a right. That seems to be the only answer to this series of facts which exists here in Mobile and in the other case, the other case argued earlier. He conceded two wrongs do not make a right was the only answer and however satisfying that aphorism might be, a brief analysis of it, we submit, illuminates the issues in this case. Busing to segregate was indeed wrong so was noncontiguous zoning, portable classrooms and so forth but the wrong was not the busing or the zoning, it was the racial segregation. These assignment techniques were normal, neutral, administrative means of implementing a governmental policy, in this case an unconstitutional governmental policy. Similarly, transportation and the various other aids of school assignment in the service of integration are neither good nor bad, it considered abstract. They are similarly instruments in the service of disestablishing an unconstitutional system. The question under review is this Court’s judgment of June -- is the Fifth Circuit’s judgment of June 8, 1970 as modified by judgments of August 4 and August 28, 1970. These were the ninth, tenth and eleventh appeals to the Fifth Circuit since 1963. The case is now pending there on further appeal, having to do with enforcement of the transportation and faculty portions of the earlier decree. It has been before the District Court and the Court of Appeals a sufficient number of times so that the docket entries alone occupy half of the first volume of this record and throughout these proceedings, a vast quantity of materials have accumulated. Nevertheless, the salient facts are clear and they are not complex and the issues confronting the Court are clear. The essence of the problem is revealed in statistics filed by the respondent in the District Court on October 2nd, a week ago, last Friday and not I may add served on us. Respondent’s document has been reproduced in our supplemental brief, filed with the Court on October 10th and analyzing the brief. It is a photocopy of their document in our own brief. And what I am about to describe is the board’s own statistics although we submit that upon an evidentiary hearing we could demonstrate to the facts are far worse. The Fifth Circuit plan in operation according to their statistics, results in 7,651 or about two thirds of all the Negro school children of metropolitan Mobile attending all black elementary schools using the Fifth Circuit’s definition of an all black school as one with fewer than 10% white students. This map of metropolitan Mobile indicates the elementary school districts in that portion of the system. It is approximately 10 miles across the west and 18 miles from north to south. Almost all black children are separated from the preponderant white portion of the city by interstate 65. This is the separating line, this is the black section, this is the white section. The all black zones now on their own admissions include Robins which is all black, Grant which is all black, Brazier which is all black, Palm (ph) which is all black, Stanton Road which is all black, Fonde which is all black, Owens which is all black, Collier (ph) which is all black, Council which is all black. Then here is Whitley which is 89% blend, all black, 1% from the Fifth Circuit definition and other schools ranging from 64, 76 and 80% black. Now, these districts here, using again a definition of no more than 10% black students are all white. Indian Springs all white, Forest Hill all white, Austin all white, Fonde all white, Shepherd all white, Morningside all white, Merck is all white, Westmont all white, Williams all white. Here is a district with 52% white drawn from an all black enclave here, but for many years there was the only one to 12 school in the system, the school being one to 12 so that it would absorb all the black children in that area. The school is closed and now they go to school over there. There are in fact some small percentage of white students living in some of the 90% to more black districts, but under the plan, as it is operated, as the respondents have informed the District Court for reasons that we do not know, not all of them and perhaps none of them are attending the schools to which they are assigned. There is a motion pending in the District Court about that but we have not been able to get a hearing. Moreover, the petition which we took to this Court involves only elementary schools. The high school situation, however, under actual enrollment figures now furnished seems far worse than projected in the government’s plan which is essentially adopted below. As page three of our supplemental brief indicates, more than 6700 Negro students will be going to high school and junior high school in all black schools. Therefore, we have a situation in which the preponderant number of black students in metropolitan Mobile will be spending half of their education, the elementary years in all black schools and the so called palliative of integrated junior high and high school education which does not, in any event cure denial of constitutional rights for the first six years, will in fact not exist for them. And the issue is, does this final, this is a final desegregation plan, does it satisfy the Fourteenth Amendment? The Fourteenth Amendment rule as most recently been expounded in Green and Alexander as requiring the ending of the last vestiges of segregation and the elimination of segregation, root and branch. And we submit that that imperative is far, exceedingly far from having been satisfied. Now the justification offered by respondent and the United States for leaving racial segregation essentially intact in metropolitan Mobile is that the result is required by neighborhood schools. In assessing the so-called neighborhood school zoning of Mobile, we might however first describe the methods of school zoning which Mobile has used traditionally. On this record, the school district buses more than 20,000 students at an average round trip of 30 miles a day. Most of the busing is in the rural area, but there is a substantial amount at shorter distances in the city and so busing is hardly foreign to Mobile education and this figure compares fairly well with the fact that 40% of all American school children are bused to school. Some of this busing has clearly been for the purpose of maintaining racial segregation. As for example, when approximately 600 black students were bused from rural Saraland down to around this area to an all black school. Approximately 7000 students in the western part of Mobile over here, it’s in the metropolitan area, are bused where the school districts are large and the distances are somewhat greater and the preponderant part of the white population lives. But the point is that busing is common place in Mobile education. Mobile has in the past regularly used noncontiguous zoning. I would like to ask the Court to turn to pages 7 (a) that’s in the appendix to our brief and look at the two pages of colored maps there. These maps were prepared by the United States and have been adopted from their appendix in the Court of Appeals for the Fifth Circuit. The zones on the map are colored in a way so that all parts of a noncontiguous zone are the same color and some of these involve so called satellite zoning and some of it involves noncontiguous pairing. It can be seen at a glance that Mobile has assigned children to schools on anything but a neighborhood basis. The difference is of course this map depicts a period in which noncontiguous zoning was used to maintain racial segregation. On the first page, for example, the bright pink portions constitute a single school zone in which black children were bused in the northern part of the zone to the pink semi-circular sections in the right side which is the Saraland situation I was describing a moment ago. White children attended a single school from the blue portion of the map, that being satellite zoning. There was a school in one part, but not in the other. But the corridor between the two sections called Thomas was formed because blacks lived in there and they were not to go to the white school. On the next page, the bright red portions of the map, again just taking an example, constitute a white school zone and white children at Brookley went up to the white school at Woodcock.
Warren E. Burger: Before you more that Mr. Greenberg, coming to the corridors you called it between the two blue sections with the title Thomas on it. To what school students in that area go? Where are they assigned?
Jack Greenberg: Now?
Warren E. Burger: Yes. I’m trying to follow that on your exhibit.
Jack Greenberg: Well, Your Honor you’re going to have difficulty as I have had in going from one map to another because Mobile has changed its school assignment system so frequently and so much from year to year that zones you will see on one map, Mr. Justice, one year will not be on the map for the subsequent year and so forth.
Warren E. Burger: What I want to know is where was at the time of this map, in other words I am searching --
Jack Greenberg: They went to a black school named Thomas in the Thomas zone at that time. There was a black school named Thomas in the Thomas zone between Whistler and Parks and black students went to the Thomas school and white students attended school, a single school from Whistler and Parks.
Warren E. Burger: The outlines of the Thomas school are not shown on this map zone, are they?
Jack Greenberg: Well yes Mr. Chief Justice, if you --
Warren E. Burger: They are just like green line?
Jack Greenberg: No, the outline of the Thomas School between Whistler and Parks is all in white, it’s not colored in. We’ve colored only the noncontiguous zones.
Potter Stewart: And when was this zoning planned?
Jack Greenberg: These are maps that I believe is I think zoning in 1964 and 1965. It’s a composite prepared by the Department of Justice for those two years. The noncontiguous zoning, the noncontiguous zones are listed on page 19 (a) of our brief, Mr. Justice Stewart, for each of the years. If you will turn there, there is a list with a single spaced page of rather small type which lists all the noncontiguous zones which existed in the Mobile school system and by year, the ’63, ’64, ’65, ’65, ’66, ’67 that's as of the time when that record was made. Now, if this analysis of the last five minutes is not completely laid to rest the fact that there is nothing to the notion of neighborhood schools in Mobile, I would like to add that in the black areas, whenever they had a school where the capacity of the school is filled up by black children, they wanted to put more blacks in, they added portable classrooms and the records show that with respect to white children, they did the same thing. The capacity of a school can determine the neighborhood it will serve, but where the capacity of a school is a readily expandable thing like an accordion, almost it’s like an Alice in Wonderland, what is the capacity of the school? The capacity of the school is whatever the decision of the school board decides that it should be. In fact in Mobile, portable classrooms, the record shows, were substantially added to black schools while white schools were under capacity and this is shown by respondent’s report which is on page 208 of the appendix and in appendix D to our brief. Appendix D to our brief has a list of portable classrooms and so the notion of neighborhood has somehow related to a fixed capacity of school while we would submit in no cases applicable here is ludicrous. Another way school population is defined is by grade structure. In this all black area over here, which is called Hillsdale, they had the only one to 12 school in the city of Mobile and I mentioned that earlier because that absorbs all the black kids. This, for example, only a K-3 school or a high school or junior high school, the black kids will then have to go to schools elsewhere. That school ultimately was closed, but it’s a normal and quite recent assignment practice of the school system. Elsewhere in this system, there is the most variegated combination of great structures. An expert witness said he had never seen anything like it. In our brief on page 35, there is just a summary of the great structures which they have used in 15, 16, 17, 18 19, 25, 67, 68, 69, 610, 612, 7, 78, 79, 711, 712, 812 and I am just picking them out. In other words, the notion of neighborhood as determined by the capacity of a school serving a geographical area is even -- well, it is a concept that is really not capable of definition, certainly in this case. We saw in the Swann case, the Charlotte case that what is claimed to be a neighborhood that is a contiguous zone can consist of something like the shape of a dumbbell, two large round areas are connected by a connecting bar. The connecting bars in there, it's called a neighborhood and if you take that out, it's called noncontiguous zoning and not a neighborhood school. But the complexities and curiosities of the neighborhood school system in Mobile are even more fantastic than that. The record will show that Mobile school officials define the neighborhood school not merely in geographical terms but in psychological and sociological terms as well, whatever that may mean. The question for this Court therefore is whether in a school system, which has been segregated by law until 1954 and which remained completely segregated until 1969 and which is still now overwhelmingly segregated as the result of a so-called final desegregation plan under which it now operates, this Court, supervising District Courts sitting in equity should fashion an effective remedy to forever end the unconstitutional administration of the school system so far as race is concerned.
Warren E. Burger: But that would end it just in this particular case, wouldn't it?
Jack Greenberg: Pardon me, Mr. Justice.
Warren E. Burger: That would end it, your objective was to end it forever. That would end it just in the areas you have shown on your map, wouldn’t it?
Jack Greenberg: An effective remedy would end it.
Warren E. Burger: Yes if we found this effective remedy?
Jack Greenberg: Yes.
Warren E. Burger: Now, while we’re there, I suppose Mobile is no exception to what is true in almost every large community in the country that there is a more or less constant movement of people, sometimes described as an upward movement, people trying and like -- with a two bedroom house, trying to get a three bedroom house or a three bedroom house trying to get a four bedroom house, this movement is going on. How does the District Court in performing this function keep track of the changes that would flow from that? I assume that you would agree that changes will flow from that upward movement.
Jack Greenberg: Well, Mr. Chief Justice, I would submit it’s not the job of the District Court to keep up with it, on its own initiative. It’s like any other decree in equity if a party or parties come to the Court with a pleading setting forth a claim upon which relief can be granted and the Court will examine it and decide whether relief should be granted. But the Court is not going to replace the school, but ultimately the school board has a constitutional duty, having taken the oath to uphold the constitution, to keep up with this kind of thing and the District Court may or may not be called upon to do it.
Warren E. Burger: Well, if I can propose a hypothetical situation to you, assume that in a given district where you have a racial balance of the school which, as of today you find acceptable and that three years from now by the so called upward movement, the population of that area has changed so that the balance no longer satisfies the standard racial balance that is found acceptable today in 1970. Is that a matter as to which the Court should grant a remedy?
Jack Greenberg: Mr. Chief Justice, I would like to make several observations in an effort to answer that. And one is, in a city like Mobile, indeed many communities which may come before a court or this Court, will have a situation in which the constitution has been violated without a doubt to their knowledge from 1954 to 1969 and it may be not asking too much to take another look at it again three years later. It’s not as if they have been thoroughly well integrated for a hundred years and then someone is suddenly calling them into Court. Secondly, it maybe that the Court will have to look at it as indeed in policing an antitrust decree or a water rights case or anything. So it is possible and then a judgment will have to be made on the merits of the case. As your question implies, will a period arrive sometime in history in which the Court will no longer ever have to look at it again, I imagine that at some point it would arrive, but now one year after Mobile has first taken a step going only as far as it has, I suggest, it's premature to consider that question.
Warren E. Burger: But in the hypothesis I was putting to you, there is no element of discrimination that brings this about, but merely natural change in the structure of the community. So is it your position then that the Court has a duty to -- the school board in the first instance, the Court, the parties, must go in and see to it that adjustments are made to reflect the composition of the community, independent of any discriminatory motive?
Jack Greenberg: Well again, that’s not this case, but I don’t want to evade your question by giving that kind of an answer to it. The school board is being asked to take affirmative action at this time to undo a long history of quite vigorously enforced discrimination and I think it -- we’re talking about a hypothetical case, I would assume that in a period of three years, the racial segregation which has been so virulent and has, as Mr. Napier (ph) said earlier, in a part of American history there is slavery for a hundred years and segregation for a hundred more, it may not be so easily uprooted. It maybe the Court will have to look at it again and see whether or not this is just a natural movement of upward mobility to get a house with an additional bedroom or is related to something else. But that's on a record that I haven’t seen and no one has seen.
Warren E. Burger: But what I’m driving at is that last point I was trying to make to you. Is this always tied to a discriminatory motivation or does this requirement of the racial balance exists independent of the reason and source?
Jack Greenberg: Well, the racial balance is in your question, not in my statement and it’s not a term. I think, it was made quite clear that we are advancing to this Court. The solicitor reads our brief which says, we disallow racial balance, it says Aha, that shows they are for racial balance. So I would like to say that if you’re hypothesizing a case of racial balance, I’ll answer it in terms of the hypothesis, but it is --
Warren E. Burger: But you were reciting some figures to this, what do those figures mean?
Jack Greenberg: That it’s not a question of balance, it's all black.
Warren E. Burger: No, but I am talking about the corrective parts, because you have -- you mentioned some specific figure, I forgot now what it was. Corresponding to the 7129 figure in the case we argued yesterday.
Jack Greenberg: I have not yet mentioned any figure Mr. Chief Justice.
Warren E. Burger: Well, then I suppose I give it (Voice Overlap)
Jack Greenberg: The figure which I mentioned was merely describing the racial population just so the Court would have an understanding of what the facts of the case are. I was not proposing any --
Speaker: Yes, but you did use a definition (Inaudible) the Fifth Circuit?
Jack Greenberg: Yes, I did. I did use the Fifth Circuit definition as describing those districts and the school that I call all black, is in terms of Fifth Circuit definition has indicated here, 90% black. Yes, that's correct. I would, Mr. Chief Justice, there is a time when the Courts can divest themselves with this problem. I would seriously doubt that would be three years from now. But it would be at some time and we don’t know when. I think, only experience will tell.
Byron R. White: Even though the intervening acts which changed the context of neighborhood may be wholly private decision making?
Jack Greenberg: Well, if they are wholly private decision making and can be totally divested from everything else, I might tend to agree it would be sooner rather than later. But, I think, a careful examinations of records indicate frequently that what is taken to be wholly private is often not wholly private. I think, we have to see. But on the hypothesis that it's wholly private and on hypothesis that we have had a completely desegregated system and so forth, I would say such a time could arrive. I was beginning to say that the question for this Court as we see it on this record is whether in a school system which has been segregated by law until 1954 and which remained segregated until 1969 and which is now still overwhelmingly segregated as the result of a so called final desegregation plan, this Court, supervising District Court sitting in equity should fashion an effective remedy to forever end the unconstitutional administration of the school system, so far as race is concerned. We submit that this Court, as a remedial measure, should declare a rule which requires that every black child at every grade in his educational career must be free of assignment to a racially identifiable minority school and such a school, in language of our brief is one which by reason of a very considerable concentration or disproportion is conceive and designed to receive black children.
Potter Stewart: May I ask, Mr. Greenberg a question that I asked yesterday in somewhat different context. I understand your position, a position that's spelled out very clearly in your brief, and it is addressed very clearly orally here, but is it your position that that is a test that must be met in remedying and rectifying a previously dual school system on the one hand or is it your position that that’s a test that is required substantively by the Fourteenth Amendment, regardless of the history of a particular school system?
Jack Greenberg: Well, it is the former but the two are intertwined because you do not get to disestablish a segregated school system except for the Fourteenth Amendment, unless there are State or Federal Legislation, but it is essentially the Fourteenth Amendment we are talking about in cases like this. What we are talking about is a remedial measure. We are talking about a remedy but frequently from remedies, rights do stem, in an antitrust case, you may get a right to license or a right to the government, again a right to compel divestiture, which is a remedy, you could not do but for the fact of a certain substance of violation. However it is a remedy.
Potter Stewart: Well so, then do I understand that it is not, so you do not plan, that it is the personal, individual, constitutional right under the Fourteenth Amendment of a Negro Public School child to attend throughout his school career, a school that is not racially identifiable?
Jack Greenberg: I want to be sure that I understand your question. You are limiting your question to areas where there has been segregation imposed by law in some form?
Potter Stewart: No, I’m not limiting my question. I ‘m asking you whether it's your position that the Fourteenth Amendment confers upon every school child in the United States and particularly every Negro public school student the right to attend racially non-identifiable schools throughout their school careers, throughout their school career?
Jack Greenberg: Well, my answer is no and I have to explain the reason for the answer, so I would be sure that I am not misunderstood. It appears to me that you are essentially raising what might be called the De facto question, whether where there has been no de jure segregation and there is nevertheless a considerable concentration of black students in a racially identifiable school, nevertheless, one may obtain a decree from a Federal District Court integrating the schools according to the measures we propose. My answer to that is we require some finding of -- we think that this, the rulings of this Court require, that there have been some segregation imposed by law. We think, however that in parts of the country which are normally not referred to South are out of South, one can find that segregation imposed by law as in Denver and in New Rochelle and in other places where it has been found and it has been done by Court and we think that a searching record in other places would turn it up as well. We will assume that there are places where that has not been established and cannot be established. And in those places, I personally would be willing to urge a Court that the same remedy should apply. It would be on a different basis, not this case and I would --
Potter Stewart: Then it's not a remedy. Then it's a substantive constitutional right?
Jack Greenberg: I would concede that's an open question and hardly the thing to be decided here today.
Potter Stewart: But in that case, it would not be a remedy to rectify an illegal situation?
Jack Greenberg: That’s correct. In that case one would have to find a substantive right.
Potter Stewart: It would be a personal substantive constitutional right, would it not?
Jack Greenberg: That's right.
Potter Stewart: In that hypothetical case?
Jack Greenberg: That's not this case. This case is a case we're arguing on the basis of remedy and I would readily admit, as I would have to, a fair reading of the cases indicate that other cases an open question.
Hugo L. Black: May I ask you one question (Inaudible) clear on your (Inaudible). There was a village in Alabama that I lived in, it was 100% colored. They had a mayor who is colored. They had a Board of Aldermen, colored. So they were granted by colored people. That was by nature, whether that is maybe that there is some reason why they had concentrated but they were there. Would it be your view that a place like that would have to come under the rule which you are asking for?
Jack Greenberg: No Mr. Justice Black because I did not get to state the second part of my rule, is that it must be feasible or workable and as you described the case without really understanding the situation any further, it’s difficult for me to understand how that would be feasible or workable.
Speaker: It worked pretty well the way they had it.[Laughter]
Jack Greenberg: No. I mean feasible or workable to integrate the school is what I am referring to. One would have to find some workable method of integrating the schools there and at least the case is put to me, I cannot think of a way of doing it.
Speaker: Probably none of them would wanted it?
Jack Greenberg: Yes, well that is the second part of the --
Thurgood Marshall: Would it be the same answer (Inaudible)?
Jack Greenberg: Would I give the same answer from --
Thurgood Marshall: (Inaudible)
Jack Greenberg: I imagine I would have to, yes.
Speaker: (Inaudible)
Jack Greenberg: Well I will confess that I like perhaps some others in the Court that are confused about the feasible, the workable, the reasonable test and I think we have to focus not on those words which have been used in ways that make them so inherently confusing, but on something else that relates to them and that is first --
Speaker: I didn’t understand, I gather that Green was feasible (Inaudible)
Jack Greenberg: Yes, green use feasible.
Speaker: Where the reasonable, I know we should become under the Court of Appeals of the Fourth Circuit, but where do reasonable or workable (inaudible) feasible.
Jack Greenberg: Workable was used in a concurring opinion by Mr. Justice Harlan in the Carter case, the feasible using Green, reasonable is in the Fourth Circuit. I think we would have focus on something else as these words that are being used are getting us nowhere and I think we want to focus on one, the result to be achieved and the result is the elimination of the all-black school and workability or whatever other word you used have to be seen in that context and then the casting of the burden.
Speaker: I thought we used feasible events of an alternative or any alternatives from keeping it a black school.
Jack Greenberg: Yes.
Speaker: Who aboard at the duty of employing one of those alternatives to be segregated, in that sense there wasn't an issue?
Jack Greenberg: I think so but I think it has to be also seen and I think we used it in that sense also in terms of the burden. If it appears it can be done as a very heavy burden on the board to establish that it cannot be done. Now --
Potter Stewart: By feasible, as I understand, you mean possible?
Jack Greenberg: Possible and in Mobile -- and in Mobile and Charlotte and in Athens in different ways. We know it’s possible in Athens because they are doing it, we know it’s possible in Charlotte, it happened today. We know it’s possible in Mobile because they have done it.
Potter Stewart: Right.
Jack Greenberg: They have done far more than they really have to do.
Potter Stewart: And your formulation would be if it is possible and you put the burden on the school board to show it is impossible, isn’t that about it?
Jack Greenberg: Yes, and a considerably heavy burden. Now that the solicitor had said that we are arguing some theory of racial balance, he has read the clear language of our brief, he picked it up and he read it. I had to turn to it because I thought maybe this brief had been changed down at the printer or something when he said well see therefore racial balance and I was really scared when he started reading that because I thought it said something it did not say, but it says what it was supposed to say that in the unitary school system, no black student may be assigned to a racially identifiable black school and I think we can explain it at considerable length that that does not mean racial balance and why. As we understand the meaning of racial balance, it means that every school has to reflect approximately the percentage of students in the same ratio as their ratio in the overall population. In metropolitan Mobile, it would be 50-50. In Charlotte it would be 70-129 and Mr. Chambers made it clear yesterday and I am making it clear now that that is not what we are arguing. Our position is that the constitutional obligation, just establish a dual segregated system requires at least that the resultant schools are ones which are not so overwhelmingly black when considered with a total population of that school district, that it’s considered to be a black school. And we differ also from the Government which use the words feasible and workable as we have in that we focus on result. We say and the decisions of this Court suggest that a most heavy burden is on the school board to establish that a means to end segregation, that means to end segregation do not exist and the plan does not work. In Mobile it is workable because I think of the ten techniques they have used if they picked any two or three they could do it and certainly if they used all the ten. Athens, it’s workable, Charlotte it’s workable. Mr. Justice Black’s hypothesis, I would assume it’s not workable. (Inaudible) so it is not workable, but we have this case here and I don’t think we have to -- that it’s difficult enough without considering all the cases that we don’t have here.
Harry A. Blackmun: Mr. Greenberg let me take you on thoroughly beyond this case. Suppose that that interstate were the boundary line between two school districts, what then is the situation?
Jack Greenberg: Well actually that interstate is the boundary between a number of school districts. It is the boundary, well in fact that school, it is the -- or having thought of it that way Mr. Justice Blackmun, but it is a common school boundary for a large number of school districts. Well they have moved school districts around all over the place and I think they would just -- one way of doing it, not that they have to reach the interstate barrier, they might do a variety of above. Actually, the Department of Health, Education and Welfare has adopted a plan called alternative B1 and I wanted to make -- have it clearly understood that we are not urging alternative B1 upon the Court. Alternative B1 was conceded in the Court of Appeals by the government to be a feasible plan. It was designed by HEW. It was one of four plans that could work to desegregate Mobile. We are not urging it upon the Court because they have not -- this record is riddled with denials of hearings, ex parte action, the facts have changed and it is entirely possible that at this moment it would not be an appropriate scheme for Mobile, but it is approximately the sort of thing which can do it and as a matter of fact --
Warren E. Burger: I think we’ll take it up at 10 o’clock tomorrow morning --
Jack Greenberg: Thank you Mr. Justice.
Warren E. Burger: -- Mr. Greenberg.