Warren E. Burger: We'll hear arguments first this morning in Davis -- Shirley Davis against Passman. Ms. Shtasel, you may proceed whenever you're ready.
Sana F. Shtasel: Thank you Mr. Chief Justice and may it please the Court. My name is Sana Shtasel appearing for the petitioner in the case this morning. The case before you today arises on writ of certiorari from the United States Court of Appeals for the Fifth Circuit. The basic question is whether a cause of action from money damages may be implied under the Fifth Amendment to redress sex discrimination in federal employment. If that question is answered in the affirmative, this Court then must determine whether respondent is nonetheless absolutely immune from suit by virtue of the Speech or Debate Clause of the Constitution. The facts of this case are simple and stark. Petitioner was employed by respondent then a United States Congressman for a six-month period in 1974. Despite the fact that petitioner was an able, energetic, and extremely capable secretary as attested to by the respondent in his letter of dismissal, which appears in the appendix in this case at pages 6 and 7, respondent dismissed petitioner solely, explicitly, and expressly because he wanted a man rather than a woman to fill that position.
Harry A. Blackmun: Do you mean as secretary that's the way he described her?
Sana F. Shtasel: The title of the petition -- of the position Mr. Justice Blackmun was deputy administrative assistant but it is the functions of the job that are in question here and no one has ever contended that the petitioner did anything other than secretarial functions. That is exactly how her job was described in the letter terminating her employment which is the only thing we have on the record in this case. Petitioner therefore brought suit allegedly --
Harry A. Blackmun: Do you think it would make a difference if her task were secretarial exclusively or administrative assistant at least impart?
Sana F. Shtasel: It might make a difference Mr. Justice when we get to the question of the operation of the Speech or Debate Clause. It should not make a difference as to whether the petitioner has a cause of action under the Fifth Amendment. Whether however, her job functions would be so integral to the congressmen's legislative functions that the employment relationship should nonetheless be covered with absolute immunity is a question which must be addressed there. Our position however is that there is no way that the Speech or Debate Clause can apply to the -- to a low level non-policymaking clerical employee. I might say that this case arises on a 12 (b) (6) motion to dismiss so that our contentions here for the -- in the procedural posture of this case must be taken to be the ones applicable.
Byron R. White: What was her salary is that in the review?
Sana F. Shtasel: That is in the record Mr. Justice White. Her salary was $18,000.00 a year.
Byron R. White: That sounds like a little some other than a low level clerical employee, doesn't it?
Sana F. Shtasel: It sounds like it Your Honor but one when consults the report of the clerk of the house for that period in time, it's quite clear that some 75 other representatives had secretaries, personal secretaries, executive secretaries, all making that kind of salary and indeed there are other cases where members employed persons called secretaries who made more than the administrative assistant that they also employ.
Byron R. White: When was this, 1970?
Sana F. Shtasel: 4.
Byron R. White: 4.
Sana F. Shtasel: She was employed from February through July in 1974.
Warren E. Burger: The salary may be fixed by each individual member of the House in Senate without any standards, is that not so?
Sana F. Shtasel: That is true Mr. Chief Justice.
Warren E. Burger: In some cases they level it off and divide the work among several people and another cases they have a very high salary of secretary, is that --
Sana F. Shtasel: My understanding is that they are allotted a maximum of 18 slots which can be filled at their discretion and with salaries at their discretion.
Warren E. Burger: Well, they're not allotted 18 positions and X thousands of dollars and they may spread the salaries as they wish, is that not?
Sana F. Shtasel: That is correct. Petitioner, following her termination, brought suit a legend that she had been a victim of sex discrimination in violation of the Fifth Amendment premising jurisdiction upon 28 U.S.C. Section 1331 (a). The District Court dismissed this case holding that plaintiff had no private cause of action. A panel of the Fifth Circuit of Appeals reversed on that issue and then proceeded to canvass all the related constitutional issues. It held as had the District Court that no immunity doctrine would bar the suit. Rehearing en banc was held to assess whether the doctrines of legislative immunity and political question which I might add had been raised for the first time by the panel were applicable to this case. The en banc court however did not decide that question, rather it decided an issue that had not been briefed before the panel had been conceded by respondent at the panel and had neither been raised by the respondent on rehearing nor briefed by him in that proceeding. The Court held that an implied cause of action does not arise under the Fifth Amendment to the United States Constitution, and accordingly that petitioner should have no remedy whatever to vindicate her fundamental constitutional rights. The validity of that decision is the first question for this Court's determination today. For the reason stated in our briefs to this Court, this case is controlled by Bivens against Six Unknown named agents of the Federal Bureau of Narcotics. In Bivens, this Court held first that the petitioner had a private cause of action for damages arising directly under the Fourth Amendment. Second, that the federal right was independent from any state right that might be implicated, and third that money damages were remedial mechanism normally available in the federal courts. In the seven-and-half years since Bivens was decided, nine courts of appeals and countless district courts have applied Bivens to constitutional amendments other than the Fourth and to federal officials other than narcotics agents.
Harry A. Blackmun: Counsel, some of us were in dissent in Bivens and do you think that blocks us in and makes us necessarily unsympathetic to your posture here?
Sana F. Shtasel: Mr. Justice Blackmun, I'd be delighted if the dissents Bivens were persuaded by the cause of action should be applied under the facts of this case. I think that the rational of the Bivens' majority and the rational of the courts that have applied Bivens in the succeeding years is sufficient to suggest that we can apply a cause of action under Bivens here. Indeed as well, there are other factors in this case which make it perhaps a stronger case than Bivens for the implication of a cause of action from money damages under the Constitution.
Harry A. Blackmun: You know, we do try to be individually consistent and what I'm asking is, is there any escape for those of us who were in dissent in Bivens?
Sana F. Shtasel: I would suggest one Mr. Justice Blackmun. One of the concerns was that Congress had not expressly spoken on the question in the Fourth Amendment case. In this case, Congress has a formatively declared in 5 U.S.C. 7151 that employees of members of Congress are not to be discriminated against. Accordingly to the extent that this Court needs to look or wants to look the congressional declaration in the area is a path. As a second possibility, Mr. Justice, there were some concern in by the Bivens' dissenters that the federal courts would be subjected to an avalanche of cases. Indeed, there have been almost eight years of federal litigation in this area and known for it other than the en banc for prolong has suggested that there's a problem of judicial and manageability in this area.
Harry A. Blackmun: Yes, but you just made reference to a number of cases in this area whether the courts had gone in your favor. So, there is some litigation.
Sana F. Shtasel: There's extensive litigation in the area.
William H. Rehnquist: Doesn't some of your answer to Mr. Justice Blackmun cut the other way in the sense that although the statute is on the books the general kind of hortatory statute, Congress is quite carefully considered whether it wanted to make its members subject to say Title VI, the way the Executive Branch members are or whether it wanted to subject its members to any particular strictures in their hiring and firing and they simply have not done it. They've considered it and rejected it.
Sana F. Shtasel: Our argument Mr. Chief Justice -- Mr. Justice Rehnquist, pardon me, is that Congress cannot mandate no remedy for violations of constitutional rights and indeed in this case it is never suggested that there should be no juridical remedy for this kind of violation. Indeed, it has not brought congressional employees under the ambit of Title VII and it could certainly enact legislation which would so provide and indeed even protect its own members from the possibility of personal liability which has been done in other context.
William H. Rehnquist: Well, that proposition may be entirely some but it doesn't seem to me that it's really makes your case a stronger one than Bivens as you suggested to Mr. Justice Blackmun.
Sana F. Shtasel: In Bivens, there was no congressional policy stated in the area. In this one, in this case, at most we have a congressional hortatory statute which declares what the policy of the United States is to be. Moving along, I would suggest that the court below does stand alone in the face of this authority and in doing so in refusing to imply a constitutional cause of action the en banc court did erroneously look to the criteria enumerated in Cort against Ash for implication of remedies from federal statutes. The respondent reaches the same result by different root. He uses the proviso of Bivens that special factors might counsel hesitation in the absence of affirmative action by Congress and argues that some seven special factors counsel hesitation here. Each of the Court criteria and each of the special factors relied upon by the respondent are dressed in our brief. None of them either alone or in combination justifies dismissal of petitioner's complaint in this case. We would suggest that the respondent is correct to the extent that he acknowledges that it is Bivens that controls this case. As I just mentioned in response to Mr. Justice Rehnquist, we think the court below erred in relying on Cort against Ash because those criteria are irrelevant when a constitutional right rather than a right created by a federal statute is an issue. For the reasons, we have outlined however at pages 26 to 36 of our opening brief application of the court criteria would require recognition of a private cause of action nonetheless on the facts of this case.
Byron R. White: Your reliance is on the equal protection component of the Fifth Amendment?
Sana F. Shtasel: That's correct, Mr. Justice White.
Byron R. White: Exclusively?
Sana F. Shtasel: Yes, sir.
Byron R. White: Is it your view that the Equal Protection Clause even of the Fourteenth Amendment confers personal rights? Doesn't it just have to do with classifications?
Sana F. Shtasel: I don't think that the analysis would be different under the Fourth Amendment as under the Fifth Amendment in the implication --
Byron R. White: Well, there are really provisions of the Constitution. The First, Fourth and the Sixth Amendments among others that specifically and explicitly confer personal protections freedoms and sometimes rights, free press, free speech, free exercise or religion; the Equal Protection Clause of the Fourteenth Amendment however just has to do with classifications, doesn't it?
Sana F. Shtasel: That is true Mr. Justice White but many classifications or at least several have been deemed to this Court to rise to the level of being constitutionally safeguarded and thus subject to the equal protections scrutiny.
Potter Stewart: Invidiously discriminatory classifications but they -- there's nothing in Equal Protection Clause that confers personal rights by contrast to those provisions of the Constitution, examples to which I gave you.
Sana F. Shtasel: What the courts have held however and indeed this is the constitutional jurisprudence which has come down from Marbury against Madison is that when constitutional rights are invaded as opposed to other kinds of rights to federal courts --
Potter Stewart: Well, whose constitutional rights -- the Equal Protection Clause just requires a state in the Fourteenth Amendment or insofar as it's component of the Fifth Amendment requires the federal government to grant everybody equal protection of the laws. It doesn't confront individual's personal rights, does it?
Sana F. Shtasel: I believe the very purpose of the Bill of Rights --
Potter Stewart: We have a personal right of the exercise of free speech against governmental interference or the one has a personal right if brought to trial in a criminal court to the assistance of counsel and so on. Everybody has that each individual has a personal right but what is there in the Equal Protection Clause that confers any such comparable personal rights?
Sana F. Shtasel: Indeed, you're going to the heart of the case Mr. Justice Stewart in suggesting --
Potter Stewart: I do.
Sana F. Shtasel: -- that constitutional rights, must be implied or remedies for them from the Constitution because without that implication of the cause of action those rights would be reduced to meaningless rhetoric. There would be no enforcement mechanism for insuring those guarantees.
Lewis F. Powell, Jr.: May I ask you a question? Would your Bivens' analysis be applicable to key staff personnel at the White House?
Sana F. Shtasel: Again, I think the answer Mr. Justice Powell is yes as regards the cause of action aspect of the case before you this morning. If there were to be any bar to trial on the merits it would have to come under any official immunity which might be invoked under the rules governing immunity in that area which are somewhat different from those at this point in time governing the operation of the Speech or Debate Clause in the legislative context.
Lewis F. Powell, Jr.: Do you think if Georgette Powell were relieved do you have a cause of action against the President?
Sana F. Shtasel: I'm frank to say that if he were relieved for reasons which were invidiously discriminatory then the answer would have to be yes.
Lewis F. Powell, Jr.: If the President had written to him that he preferred to have a talented woman in his position and complimented him only as Congressman Passman did that would be fairly analogous, wouldn't it?
Sana F. Shtasel: Yes sir. And I think the cause of action that we're asking for this morning would be the same.
William H. Rehnquist: How about Pacific Tel. & Tel. Where their provision in constitution guaranteeing to each state are republican form of government was held to be not judicially enforceable? That certainly is an example of a constitutional provision which this Court has said, it's in the Constitution but there just doesn't any private right of action Pacific Tel. & Tel. against Fuller, you know long time ago.
Sana F. Shtasel: Mr. Justice Rehnquist, I apologize. I missed the first sentence of your question.
William H. Rehnquist: You were saying that you know you can't have a right without a remedy in that sort of thing, how about the case of Pacific Telephone and Telegraph versus, I think it was, Fuller decided about 1910 where this Court said that although the constitution does say every state shall be guaranteed to republican form of government nonetheless, the people on Oregon who were challenging the referendum provision were told that cause of action -- that provision simply isn't judicially enforceable.
Sana F. Shtasel: Mr. Justice Rehnquist, I confess it's not a case that I'm familiar with and can't speculate upon it on those facts but I would suggest that in the context of the Bill of Rights guarantee that Bivens would be the law of the case at this moment in time.
William H. Rehnquist: Certainly, Bivens is a lot later than that one.
Warren E. Burger: Ms. Shtasel let me add some variation, hypothetical; it's a variation of Mr. Justice Powell's question. I don't know how many legislative assistants the president has but let's assume he has five of them and they are all men, and he calls one of the five in and says now you're doing splendid work, I have no complaints at all but in this modern day we've got to have a woman at least one woman and the legislative relations with Congress and therefore I'm sorry but I have to replace you with a woman. Cause of action?
Sana F. Shtasel: I think in that context Mr. Chief Justice other kinds of balancing factors come into play. What you were talking about there are political concerns which might govern action in this area because indeed elective representatives having historical and constitutional function to represent sort of constituencies and to represent certain positions. In that context, we are not talking about a case of invidious discrimination nor are we talking about a case where performance or job relatedness is the issue. That is quite different from a case were based on nothing more and member of Congress explicitly stated that only a man could fill a position that without question has there typically been held by women.
Byron R. White: Well, counsel if it -- I suppose if to say that -- that I suppose you could say that there would be a Fifth Amendment cause of action and still say that a cause of action hasn't been stated. And even if one is been stated, you might lose the case; you don't need to answer the Chief Justice that it is because -- just because the president might win the case that there wouldn't be a cause of action available under the Fifth Amendment.
Sana F. Shtasel: To be sure Mr. Justice White, what we are talking about at that point is trial issues and proof issues rather than as statement of a cause of action in the federal court system.
Warren E. Burger: If my question was explicitly, what if there is a cause of action, would there it not to whether he might win or lose it?
Sana F. Shtasel: In that context Mr. Chief Justice I have to answer yes.
Lewis F. Powell, Jr.: May I ask another question, what does Title VII provide with respect to staff personnel in the White House?
Sana F. Shtasel: Under Title VII members of the Executive Branch staff are covered. It is the judicial and legislative staffs which are not in the competitive service which are exempted from the operation of Title VII.
Lewis F. Powell, Jr.: No exceptions with respect to White House personnel?
Sana F. Shtasel: None on its face Mr. Justice Powell.
Lewis F. Powell, Jr.: No separation of powers problem?
Sana F. Shtasel: The Congress in its wisdom did not exempt those particular staff people.
Lewis F. Powell, Jr.: Yes.
William H. Rehnquist: Well, in the president presumably signed the Bill, is there -- is Title VII applied the Executive Branch applicable only that their competitive service or is it applied to anyone who will -- gets a pay check from the federal government?
Sana F. Shtasel: Title VII in the Executive Branch context applies to members of the civil service which have been defined under the appropriate statute to mean appointees of the executive, legislative and judicial branches. It is then when one looks the definition of the competitive service that one finds the restriction which applies to the legislative branch.
William H. Rehnquist: Well, then but the competitive service I would assume is probably doesn't cover top White House employees or the Secretary of the Treasury or people like that.
Sana F. Shtasel: They are not expressly exempted from the operation of the competitive (Voice Overlap).
Byron R. White: Well, but certainly many employees of the Executive Branch are expressly exempted aren't they, is the military exempted?
Sana F. Shtasel: The military is not exempted.
Thurgood Marshall: Is the cabinet officer an employee? He is certainly not. He's an officer. He's not an employee.
Sana F. Shtasel: He is appointed however.
Thurgood Marshall: Well, he's not an employee. He's the officer of the employee. He can be removed to my mind if they don't want that is happening.
Warren E. Burger: He's permission recites that he serves at the pleasure of the president -- I think with all presidential appointees.
Sana F. Shtasel: In that case Mr. Chief Justice, the question might be resolved by operation of separation of powers doctrine which would confer a textual commitment to another branch of the federal government. That is not the case here where there is no such textual commitment to another branch of the government nor other any other of the political questions separation of powers kinds of formulations which can be brought to bear in the instant situation. I think it appropriate to turn to the question of Speech or Debate immunity at this point in time. Petitioner argues that the absolute immunity conferred by that clause does not protect the respondent here.
Harry A. Blackmun: This wasn't decided by the en banc court, was it?
Sana F. Shtasel: No, sir. It was not. It was only decided by the panel. This Court has interpreted the parameters of the clause on nine separate occasions. All of these are discussed in our brief. I think it appropriate to suggest that the Court has with undeviating consistency articulated principles which have not waived almost over 100 years. These are several. First, that the clause has finite limits, second, that its scope is to be confined to activities which are within of legitimate, legislative sphere; and third, that the Speech or Debate Clause is not a grant of personal prerogative. Instead, its purpose is to insure the independence of the legislative branch and as, as discussed a moment ago. It is indeed the ultimate guarantor of separation of powers. The Court has made clear that there are many cases, many activities regularly performed by a congressmen or somehow tangentially related to his performance which are nonetheless outside the scope of the clause. It is our contention that firing a secretary who no one has ever contended had policymaking or legislative responsibilities is outside the scope of the protection conferred by that clause. To hold otherwise, would be to violate the governing principles that I enunciated above.
William H. Rehnquist: Well, why would it be any worst to fire a secretary on a basis of sex discrimination than an administrative assistant who have policymaking responsibilities?
Sana F. Shtasel: Mr. Justice Rehnquist, our position is that the Court need not go so far in this particular case. We -- it's our position that under no circumstance can a Speech or Debate Clause protect the low level employee. There are two --
Byron R. White: (Voice Overlap)
Sana F. Shtasel: There are two ways or two means of analysis that I suggest would be appropriate in devising limiting principles for the operation of the clause. One of them would be on the basis of the kind of job functions at issue and this Court has often times made distinction based on the nature of job responsibilities. A second analytical framework, indeed broader one, which the Court doesn't mean to reach today is to suggest that this kind of invidious discrimination is so egregious that under no circumstance could any employee of a congressman and thus the congressman himself be protected by virtue of the Speech or Debate Clause to that effect.
Potter Stewart: Is it employee of the federal government? Is it an employee of the congressman? It's employee of the federal government working in congressman's office, correct?
Sana F. Shtasel: The checks are issued from the House of Representatives Treasury but the statute is clear that that members of Congress has ultimate hiring and firing responsibilities (Voice Overlap).
Potter Stewart: As an agent of the federal government, correct?
Sana F. Shtasel: That's correct.
Potter Stewart: Which is the employer?
Sana F. Shtasel: That's right, which is exactly why this runs us to Fifth Amendment violation.
Potter Stewart: Right. Otherwise, you wouldn't have a Fifth Amendment case?
Sana F. Shtasel: That's correct.
William H. Rehnquist: Well, under your second line of analysis I presume that if in my annual search for law works if I were to interview women and find women or woman who felt that some of my votes in cases involving women weren't all that satisfactory to earn and felt she would have some difficulty working from me for that reason and she could prove that I didn't hire her for that reason, she would have an action against me.
Sana F. Shtasel: I think not Mr. Justice Rehnquist. I think that what you were suggesting falls in the nature of selection criteria for the job. It does not fall into the category of discrimination based upon sex. That's a distinction we have to make for this purposes. I notice my time has expired Mr. Chief Justice. Apparently, I submit this case.
Warren E. Burger: Mr. Gear.
A. Richard Gear: Mr. Chief Justice and may it please the Court. We submit that a Bivens cause of action should not be implied from the Fifth Amendment but that it should be limited to a Fourth Amendment search and seizure situation or physical intrusion situations. This arrest and detention of search and seizure situations are situations were at the power of Government and its police power is clearly an abuse upon the private citizen. In employment situation such as we have here, it's much more like an act between two private citizens rather than an act that has a greater effect upon the citizen because it is a power of Government. We submit that further that in this case there are special factors which counsel hesitation in creating cause of action. The first of those special factors is that we believe it a flood of new cases will overly burden the judiciary because the Fifth Amendment Due Process Clause is broad and apparently is getting broader. The Court is familiar that civil rights filings have risen from around 296 in 1961 to over 13,000 in 1977. They dropped couple percent in 1978 but --
Potter Stewart: How are those -- how is that phrase to find in those statistics?
A. Richard Gear: It's --
Potter Stewart: Civil Right's filings?
A. Richard Gear: It apparently covers our employment cases. It did not cover prisoner cases as I understand but it does cover employment cases.
Potter Stewart: I. e. under statutes like the Civil Rights Act of 1964?
A. Richard Gear: Yes, sir.
Potter Stewart: That is not surprising that there are more such occasions after the passage of that act than they were before us.
A. Richard Gear: I agree with you sir. That's correct.
Thurgood Marshall: And it's true where we are talking mostly, they can file a lawsuit.
A. Richard Gear: That's right.
Thurgood Marshall: The important being is the women?
A. Richard Gear: That's true sir but we feel that if cause of action is -- excuse me sir?
Lewis F. Powell, Jr.: Even this precisely one of the arguments that Mr. Justice Black and Mr. Justice Blackmun made in dissent in Bivens.
A. Richard Gear: That's correct Your Honor. We feel that the flood of new lawsuits upon federal issues will inhibit federal action and also inhibit federal employment.
Thurgood Marshall: Well, outside of this one, how many others do you have in this flood?
A. Richard Gear: I beg your pardon sir?
Thurgood Marshall: Outside of this case, how many others do you have in this flood you're talking about?
A. Richard Gear: Well, sir, every Circuit Court has considered the Bivens type cases and they're moving up to you sir.
Thurgood Marshall: How many 11 Circuit Courts? It says 11, now how many more?
A. Richard Gear: Well, I don't know the exact number sir.
Thurgood Marshall: I thought that you did.
A. Richard Gear: Alright. We're concerned that federal employment and federal decision for being here, which is about a series of personal judgments because the ordinary federal official or federal employ we can't handle the personal judgment. You'll be going bankrupt. It will have officers of the court going satisfying judgments out of the -- let's say of the home of other of a federal official who's been victim of some Fifth Amendment cause of action.
Lewis F. Powell, Jr.: Mr. Gear, will the same argument apply to enforcing Section 1983 against state officials?
A. Richard Gear: I think so sir, yes. Yes. Of course, in this case Congress we believe has clearly not intended to create an act a cause of action in the federal court system against itself. Congress did exempt itself and the judiciary for the personal staff employees of congressmen and of the judiciary when it passed Civil Rights Act amendments in 1972.
Byron R. White: Well, the petitioner in this case is not an employee of former Congressman Passman. She was an employee of the federal government.
A. Richard Gear: Well, that of course is the Fifth Amendment connection of the case (Voice Overlap).
Byron R. White: That's exactly right. Why wasn't a suit properly brought against the United States?
A. Richard Gear: But Congressman or I don't know you have to ask the plaintiff on that sir. I really don't know but this is one reason what we feel that the exemption to the Civil Rights Act is very important because the -- under the Civil Rights Act federal employees have cause of action aren't permitted to sue the particular individual involved by suing the Government. There's no question about personal liability as I understand it, for federal employees who are covered by the Civil Rights Act. The House of Representatives had no policy against any kind of discrimination until it passed the Clause 9 of its House Rule 43 in January of 1975, six months after the discharge of Miss Davis and either man have passed just an internal resolution prohibiting sex discrimination. At no time, as I view it, has either House or Congress put before the judiciary a cause of action in the statute permitting the judiciary to consider cases against it on the basis of sex discrimination or Fifth Amendment problems. We have both the House and the Senate --
Byron R. White: Are you suggesting that there never should be a cause of action under the Fifth Amendment until or unless Congress indicates that there should be some kind of cause of action?
A. Richard Gear: I'm suggesting there should be no cause of action against Congress until Congress suggest that sir because we have separation of power principles involved here which is in another of the special factor we believe should counsel hesitation in this case. It's that, we feel that if Congress were going to appear a cause of action against itself it certainly would've done more than there's been apparent here in the legislative history.
Thurgood Marshall: You don't think the Fourth Amendment apply to Congress?
A. Richard Gear: I don't think so, sir.
Thurgood Marshall: You don't?
A. Richard Gear: I don't think so, sir.
Thurgood Marshall: Does any part of the Constitution apply to the Congress?
A. Richard Gear: May I say this, sir. The Fifth Amendment would apply to Congress insofar as the House can discipline its own members. I submit that separation of powers principles would prohibit the judiciary from applying the Fifth Amendment against members of Congress in these employment situations. Congress is not immune from its own House discipline and of course the members of Congress are not immune from voters deciding that given individual should be replaced and given individual should be elected. Well, the --
Byron R. White: Why shouldn't Speech or Debate Clause take care of all of your concerns in this regard?
A. Richard Gear: Well, Your Honor we believe it does. We believe that --
Byron R. White: Well, I know but suppose we disagreed with you on that of course there is an area to which this Speech or Debate Clause applies and that why would -- whatever area that is why wouldn't that be inadequate answer to your separation powers or --
A. Richard Gear: Or Speech or Debate Clause in separation of powers principle of the same (Voice Overlap) --
Byron R. White: No, it certainly wouldn't protect Speech or Debate Clause certainly protects Congress against invasions why either --
A. Richard Gear: Exactly right Your Honor and this again is another special factor in this case which is the most unusual case I believe. I mean in this case which puts counsel's hesitation in the implication of a Fifth Amendment cause of action.
Byron R. White: Suppose counsel that there is a federal statute that I thought was preventing me from engaging in some activities and the federal government was threatening to enforce it against me, at least there was a case of controversy and I went into a federal court and filed the complaint saying that asking for declaratory adjustment to the statute was unconstitutional under the Fifth Amendment either Due Process Clause or the equal protection component. Now, where would I get my cause of action to do that or would I have one?
A. Richard Gear: I think you'd have a cause of action to do that.
Byron R. White: Under the Fifth Amendment?
A. Richard Gear: Yes, to declare such a statute.
Byron R. White: Well, where would I get my cause of action? Isn't that a direct action in the Fifth Amendment?
A. Richard Gear: Well, I believe it would be sir.
Byron R. White: And you think that would lie all right.
A. Richard Gear: I think that would lie all right but I think that you get into separation of power situations here that even if the Court were to expand Bivens to other Fifth Amendment actions what I'm saying that in this case separation of power considerations prohibit the (Voice Overlap) --
Byron R. White: Oh, yes but in my example there would be no federal statute that extended the cause of action to me to sue the Executive Branch and yet you say I can go into the Court and have that Court enjoin the Executive Branch?
A. Richard Gear: Well, I may have misunderstood your question, Your Honor. But if the classification principle enunciated here is the correct principle involved in the case.
Byron R. White: (Voice Overlap) well, that's a different point.
A. Richard Gear: Well, --
Potter Stewart: And who would be the defendant be in my brother White's hypothetical case?
A. Richard Gear: The Executive (Voice Overlap) --
Byron R. White: The people enforcing the statute?
A. Richard Gear: Your Honor, I do want to get into the Speech or Debate Clause considerations here, if I may. We consider that the legislative personal assistance, the personal staff employees of members of Congress are, and the relationships between Congress and these personal employees are within the legitimate sphere of legislative activity. The aides of Congressmen and Congresswoman assist them in speech writing, they assist them in preparing for and discussing how to vote, they counsel them on how to vote. They help them introduced material to committee hearings, they review transcripts of committee hearings, and they are really truly are involved in various stages of legislative decision making. In the Gravel case, the importance of legislative personal staff was recognized that the Court said that that it was impossible for modern day legislator to perform legislative tasks without aids and assistance. It went so far as to say that the day-to-day work of the legislative staff was so critical to the legislative performance that the staff members are alter egos of the members of Congress. In Gravel, it was found that the aide even share the immunity of Senator Gravel. We submit that the personal staffs of Congressmen very like the personal staff of the judges are selected for the purpose of assisting a legislator in performing the legislative tasks that when a legislator interviews an individual or considers whether to retain an individual from employment, what he's really asking is how can this person help me perform my legislative roles? It's a careful decision because the person that is selected to be on the legislative staff may share that legislator's speech and debate immunity, that person may be immune as to third person.
Thurgood Marshall: Mr. Gear.
A. Richard Gear: Yes, sir.
Thurgood Marshall: I know its water over the dam, but it's all what it worried me, and just frankly when the Speech and Debate Clause was adopted, how many people do you think have found and filed those intended that to apply to? To numerically?
A. Richard Gear: Numerically, I -- well, numerically at that time that the legislator did not have the immense staffs that they had today.
Thurgood Marshall: Immense staff, did they?
A. Richard Gear: I would assume that's correct. I think they rode on the horse to Congress now but the Constitution does develop --
Thurgood Marshall: In that day up until now it require a lot of work.
A. Richard Gear: That's right. You know but of course the aides and the personal assistance of the legislators have themselves been found to share this immunity and so the employees of the Congressman must be considered in Speech and Debate Clause situation regardless of what the original make-up and function in Congress was at that time anyway. But again the basic question that legislator asked when he hires one of these individuals is, how can this person help perform my legislative function? And therefore, we submit that the personal staffs of Congressmen are assembled, they are brought together in a very broad legislative context which context should be immune. It should be immune exclusive by the Court, it's not immune from scrutiny by the House's themselves and it's not immune from the voters. I want to examine with you the effects of not conferring speech and debate immunity in this case and the effects of not considering the separation of powers. We will have time consuming by burdens of lawsuits that will be inflicted on Congressmen. They will be involved in extensive discovery procedures that case alone is four-and-half years old. We feel that if Congressmen are made to answer before the judiciary, before the -- for the personnel decisions that is going to have a chilling effect on their personal decisions, that Congressmen will be forced to retain in competent aides when they would wish they can get rid of them but they're scared to for fear of lawsuits.
Byron R. White: Well, there are some Congressmen here who think otherwise, which they filed a new amicus brief on the other side.
A. Richard Gear: That's true, Your Honor but we feel that their interests really are concern more on the fair employment practices aspects of the society problems today than they are on the true separation of powers problem which I think accord this, if you understand me on that. If this cause of action is permitted and Speech and Debate Clause immunity doesn't apply we're going to have lawsuits of Congressmen for fees of a higher, the discharge of employees the failure to promote, failure to grant wage increases. There may be hundreds of applicants. We're not talking about a few discharges. They were talking about hundreds of applicants who desire to work on the staffs of Congressman. The employment decisions that will be potentially judiciable and which -- which cause of action would be created would be an immense number because this had might the Pentagon Papers episode or the criminal situation the (Inaudible) the everyday employment decisions that occur in Congress, and for this reason we feel that there would be a very improper injection of this Court into the judicial process. It would mean that members of Congress would have to get familiar with statistical experts, industrial psychologists. They'll have to worry about class actions every Congressman is going to need personnel expert and labor lawyer to operate. We feel that this would impair the integrity of the legislative process and would be both unwarranted invasion of the principle separation of powers and they restrict the view of the Speech and Debate immunity. That's all I have Your Honor unless there are questions. Thank you very much.
Warren E. Burger: Very well Mr. Gear. I think your time has entirely expired Ms. Shtasel. Thank you, counsel. The case is submitted.


Earl Warren: Number 13, United States versus Jackie Hamilton Gainey, et al. Mr. Claiborne.
Louis F. Claiborne: Mr. Chief Justice, may it please the Court. In this case, the government is petitioning from a ruling, invalidating two so called statutory presumptions added to the alcohol, the Federal Alcohol Tax Law in 1958. To state the underlying facts of this case very briefly, in March of 1960, federal and local agents were staking out an elicit country still in Dooly County, Georgia. While the officers were waiting there, early in the morning, a truck arrived carrying the three petitioners. One of them got out, was apprehended, two others were apprehended in the truck as they were attempting to escape. This was at the sight of the still. Distill was going, it was apparently ready to produce its first run. On the truck, a butane tank, a tank of butane gas was found which matched those found at the still site. Shortly after the arrest, one of the petitioners admitted that the still belong to all three of them and that they were preparing to make their first run from it that day. And finally, the owner of the land on which the still was located at the trial testified that one of the petitioners had approached him about doing a little business down by the creek.
Earl Warren: When were these admissions made before or after the arrest as you're saying?
Louis F. Claiborne: The admission by the petitioner Barrett, Your Honor, was made after the arrest and apparently very shortly after the arrest, still at the still site. The testimony of the landowner was at the trial several months later. All three of the petitioners were indicted on four counts. They were first charged with possessing an unregistered still, secondly with carrying on the business of a distiller without having posted the required bond, thirdly with carrying on the business of the distiller with intent to defraud the government taxes and finally in the fourth count with working at an unposted distillery, that is to say distillery at which the sign displaying the name and occupation of the owner had not been displayed. At the trial, there was directed verdict with the consent of the government as to the so called working count, the last one I've described, that is working without the sign being posted. The judge in his instructions to the jury and this is where the heart of the case is referred to the presumptions created by the 1958 Amendments to the statute. He explained that Congress had recently enacted statutes, which permitted the jury to infer from presence at an unregistered still, which was set up and in the other case which was going, that those found there were in fact possessing still, all were in fact carrying on the business of the distiller without bond. The judge however was very careful to explain to the jury that they were not required even if they found such presence and even if they found such presence unexplained, they were still not required to convict. The statute merely permitted them to do so as he put it if they wished. The jury did convict on all three counts. The Court of Appeal reversed on all counts. We're only concerned with the first two counts, however, the reversal along the third count, distilling, carrying on the business to the distiller with the intent to be fraud the government is not included in our petition and is not affected by the presumptions at issue here. The Court of Appeals thought the two presumptions involved were unconstitutional as violating the Due Process Clause of the Fifth Amendment, but before going any further, I think I should emphasize several things. First, though there was clearly ample evidence to sustain the convictions on the first two counts without any reliance on the presumptions and the Court of Appeal so found and remanded for a new trail as to the first two counts. We do not here make any harmless error argument. We agree with the Court of Appeals that it is impossible to tell to what extent, if any, the jury relied on the presumptions in finding the verdict guilty and that therefore, if the presumptions are indeed unconstitutional, a new trial is in order, that a new trial is permissible since there was sufficient other evidence. On the other hand, we find out that there was a general sentence as to all three petitioners and that therefore, the judgment of the District Court and the sentence can be sustained and should be sustained if the conviction on either Count 1 or Count 2 is sustained, that is to say if either of the presumptions underlying either of those counts is sustained. And finally, we emphasize that the two presumptions involved here, the one going to possession, the other going to carrying on the business to the distiller without bond, do not stand or fall together. We view them quite differently and as I hope to make it clear and as I think our brief says quite forthrightly, we view one as much stronger than the other and we place our primary reliance on that presumption which operates with respect to the substantive offense of carrying on the business without bond rather than on the presumption dealing with possession of an elicit still. The presumptions involved that I already described that I should state them a little more in detail. First, the statute says that as to anyone found present at the sites of an unregistered still, which is set up, that is to say which is ready for operation, the jury may infer that he, the person found there, is the possessor of the illicit still, if that person does not satisfactorily in their view explain his presence. The second presumption is that as to anyone found at the site of an elicit still which is not only set up, but which is also going, the jury is entitled to infer that that person is carrying on the business or of course aiding and/or abetting in carrying on the business of a distiller without bond and as I say it is as to the second presumption that we feel we have a stronger and a clear case. The standard under which these presumptions are to be tested are not really in dispute. I think the rule is so well settled by decisions of this Court that no issue of it is made here. The basic test as reiterated in those decisions is that there must be some rational connection between the fact proved, a fact which gives rise to the operation of the presumption and the fact inferred, the ultimate fact, in light of common experience. In judging the presumptions here because they all created by Congress and because they are not merely permissible inferences which a court finds reasonable if made by a jury, there is a special difference due to the congressional judgment. But the question merely is, was it reasonable for Congress to suppose that a jury might reasonably infer from presence under the stated circumstances that the person found there was aiding and abetting in the distilling without bond. We recognize also of course that the presumptions must not operate in such a way as to deprive the defendant of his privilege not to take the stand or otherwise place him at an unfair disadvantage. I should emphasize that the presumptions we're dealing with here are merely permissive, not only are they rebuttable presumptions, but they're permissive in the sense as the judge clearly instructed here, they're none binding on the jury. He tells them, “If you find these people were present and if you are not satisfied with their explanation, you'd still need not convict them, but you may do so.” The explanation referred to in the statute is also quite clear. It was quite clearly charged in this case, need not come from the defendant himself. There was a suggestion that the defendant must himself take the stand to rebutt the inference that arises. That rebuttal may come from any evidence he chooses to introduce, many witnesses that may put on. Indeed it may come from any circumstances in the case, including the government's own evidence. There well be that the government's proof will show circumstances which on their face explain the presence of the defendant site and from the very start make the inference impossible or unlikely.
Speaker: [Inaudible]
Louis F. Claiborne: That is correct, Your Honor, the Second Circuit case --
Speaker: [Inaudible]
Louis F. Claiborne: Well, there is a clear decision to the contrary in the Six Circuit, but it is a per curiam opinion. I believe it's the Phillips case cited in the petition for certiorari, but the Second Circuit case dealt not with either of the presumptions. Well, it may also dealt with these, it dealt also with the different presumption, one that there is an operation. Perhaps this is the opportune moment to say that the opinion below insofar as it deals with the presumption, we are primarily talking about here that is carrying on the business of the distiller without bond is indefensible on its face in this respect. The opinion deals primarily with the irrationality of presuming that a man present is the possessor of the still taking a very narrow view of possession and basing its narrow view of possession on this Court's decision in Bozza which as I shall try to explain later, we think was legislatively altered or overruled. But from that premise, that presence is not the proper predicate for an inference of possession. It then goes on to say, a fortiori presence cannot bring us to an inference of carrying on the business of the distiller assuming that the necessary intermediate link is a finding of possession. In other words, assuming that one carries on the business has to be a possessor. In viewing that, it expressly ignores this Court's holding in Bozza where the Court found as to the defendant that whereas he was not a possessor, he was carrying on the business of the distiller.
Arthur J. Goldberg: [Inaudible]
Louis F. Claiborne: That's altogether --
Arthur J. Goldberg: [Inaudible]
Louis F. Claiborne: That's altogether accurate, yes sir. To begin, I think we have to look at the case in terms of what is something of a hypothetical. I think my opponent concedes that everyone likely to be found at the site of an illicit still is probably guilty of violating some section or other of the Alcohol Tax Law. There is very little case to be made for the stray hunter of the accidental fisherman who wanders inadvertently onto the premises. The reasons why this is unlikely and I think my opponent recognizes it, is that stills are located in isolated places. Every effort is made by the operators to keep away strangers. A very stiff penalty is imposed on anyone in anyway contacted, in contact with the still discourage strangers from coming near the still and it does encourage those who are there for business reasons to keep potential witnesses at a minimum and therefore to discourage and frighten away anyone who happens close by. So, what we're really talking about is the problem of those who are there, who are guilty of violating some section of the Alcohol Tax Law and the question is whether it is fair to charge them with violating the particular section that deals with carrying on the business of the distiller without bond.
Hugo L. Black: [Inaudible] distill is unlawful and unregistered, it's being operated in violation of the law and the evidence also shows the defendant was present there, that is enough for you to convict him for that [Inaudible]
Louis F. Claiborne: Unless I miss something in Your Honor's question, it seems to me that, that is in effect what the judge did charge.
Hugo L. Black: Well, the Judge went further and it seems to me like it separated, I doubt if any judge would let the verdict stand. The only fact of the connection was that the still was found and somebody was there as although nothing else in the world, he's there. That would raise a question of sufficiency of proof, but here, the judge asked, unless he explains it or somebody explains the authority, that raises another question.
Louis F. Claiborne: Well, there -- the statute requires the judge did set me of making clear the jury that the defendant had an opportunity for explanation or as he was careful to add the case itself may explain their presence. On the other hand --
Hugo L. Black: Could he – could he discourage him? It seems he didn't get on the stand to explain it, you have a right to convict him [Inaudible]
Louis F. Claiborne: Well, it -- Mr. Justice Black, if the Court had implied that the only possible explanation was one from the defendant's own lips, then I think we would have a serious problem under the Privilege against self-incrimination clause, but since it was clear that the explanation need not come from the defendant --
Hugo L. Black: But you said he hadn't left any indication. The fellow could have gotten on the stand and testified getting the remaining part of it and what he said was mere -- as I understand this practically speaking, maybe alright, I don't deal much in the word presumption, I can't do something like calling it the presumption that you couldn't do without it, but it seems to me it was in effect you said was, the presence of the still is enough to convict unless it's explained either by the defendant about some other facts [Inaudible] the case.
Louis F. Claiborne: With taking -- it is I think it's correct to say, Mr. Justice Black, that the judge charged that unexplained presence was sufficient to convict.
William J. Brennan, Jr.: You say that he did so charged [Inaudible]
Louis F. Claiborne: Making it clear that unexplained means unexplained by any evidence in the case --
William J. Brennan, Jr.: Having that mere presence unexplained is sufficient today, would you say that's what he charged?
Louis F. Claiborne: I -- well, in a [Voice Overlap] --
Hugo L. Black: That's what I've read at page 45.
Louis F. Claiborne: That is what he ultimately charged. He previously charged that mere presence was insufficient, but then when he arrived at the statute, I think he follows the statute and he's compelled to say as he did “You're permitted to convict on a mere finding of presence provided that the explanation furnished by the evidence, any part of the evidence, is unsatisfactory in your view.”
William J. Brennan, Jr.: And you defend that as sufficient instruction?
Louis F. Claiborne: We do.
Hugo L. Black: You have to go through [Inaudible] in this case.
Louis F. Claiborne: We do, especially as applied to the crime, the substantive offense of carrying on the business of the distiller without bond, but the main thrust of our argument is that that crime is a very broad one, not a narrow one. The mere fact that the Alcohol Tax Law is in a great exorbitant number of sections and that one is tempted to view it as isolating the different faces and aspects of the illicit distilling business does not hold up on examination. There is a great deal of redundancy in the statute which is largely explained in terms of the history of the statute. Some of these sections derived from the original tax law of 1791. Two provisions in suit here, the two substantive provisions in suit here are derived from the tax law of 1868. It is quite understandable that there would be a certain amount of overlapping. Some of the crimes are very narrow and specific. Others are obviously broader and overlap some of these narrow crimes. In Bozza, this Court found that possession was a narrow crime and that making mash was a narrow crime, but indicated that it viewed the crime comparable to the one here as a broad one, that is to say carrying on the business of a distiller with intent to defraud the government. The jurisprudence under the – broad in the sense that it includes a host of activities and of factors unlike the crime of making mash for instance, which applies only to those directly connected with that particular phase of the operation.
Arthur J. Goldberg: [Inaudible]
Louis F. Claiborne: There are decisions holding a customer, at least the customer in the sense of a distributor, whether an individual purchasing one bottle at the still site, which is not a common, so we are informed that it's a common occurrence, would be viewed as aiding and abetting as perhaps a closer question. But one who takes on the stock of the distillery to -- though he purchases it, and doesn't act as agent for the still owner for distribution, we view as an essential part, an essential person in the operation in the distilling business and therefore, properly thought of as one who aids and abets the business.
Arthur J. Goldberg: [Inaudible]
Louis F. Claiborne: It's difficult to draw a line as to how much the Court is entitled to or should accept on the representations of the experience of the Alcoholic Tax Unit. We do say in our brief and I assume we had no reason not to do so that the experience of tax administrators who handled this problem commonly is that the stills are well guarded and that no unnecessary person is encouraged or permitted to come on to the site and that the practice as noted by the forces of the law is that the customers are not commonly found there. I suppose this could be documented in terms of arrest and --
Arthur J. Goldberg: [Inaudible]
Louis F. Claiborne: No, I don't think we can say that Congress focused specifically on who would or who would not be at the still site. I do think it's fair to assume that Congress as a whole was aware of the way these operations are conducted. They've been conducted in this country since Whiskey Rebellion. It's no secret and I think we must impute to Congress the knowledge that very few innocent persons are likely to be found at the still site. My position is that it would have been plainly proper, there would have been a clear rational connection between saying presence equals guilt under the Alcohol Tax Law. The question here is whether carrying on the business of the distiller is a sufficiently broad offense to embrace most of those involved in violating the Alcohol Tax Law. It seems to us the cases so hold. The decision of this Court in Bozza suggests as much and that the very words defining that crime are much broader than as contrasted to making mash for instance, carrying on the business of a distiller is a sort of crime, a sort of definition that lends itself to a much broader application especially in view of the aider and abettor statute at --
Speaker: [Inaudible]
Louis F. Claiborne: I – I don't think the Court need to go any further. I don't say that we wouldn't --
Speaker: [Inaudible]
Louis F. Claiborne: That's correct, but we would certainly be content with a ruling on the first count alone or on the, it turns out to be the second count below.
Hugo L. Black: Mr. Claiborne my trouble with the whole thing not merely this presumption but others. In the criminal cases, as I expressed in officially in my [Inaudible] is this. How can the Congress create either a rebuttable or irrebuttable presumption, you wish to call it, there are inferences that have to be shown without intruding on the function of the jury to make that decision entirely [Inaudible]
Louis F. Claiborne: Well, Mr. Justice Black, it seems to me they have gone less far in intruding on the function of the jury when they establish a mere rebuttable presumption than they would if they enlarge the substantive offense and left no leeway to the jury. Thus, here for instance it is conceivable that presence at the site of a still might have been made a crime leaving nothing to the jury, but finding a presence. Instead they said to the jury, “you may, if you choose, but we do not tell you must deduce or infer from presence another crime.”
Hugo L. Black: I didn't make my idea clear. What I cannot see is why Congress has done anything in that. If there was a sufficient inference to support a judgment, they – the Cong -- the jury doesn't have to be told by Congress that it may consider that inference. It can consider it by itself.
Byron R. White: But Mr. Claiborne, that's the truth on the judge. I mean it was – it makes the judge [Inaudible] simple case of the jury than at least the question of the jury.
Louis F. Claiborne: That is – that is true, Your Honor.
Byron R. White: And it keeps the judgment setting his verdict aside.
Louis F. Claiborne: Oh it does. It does have in effect and I recognize --
Byron R. White: That's all?
Louis F. Claiborne: That's all it does. Now I've – I have.
Hugo L. Black: But how can it -- can the Congress legitimately in our system of government pass a law that forbids a judge to set aside the verdict of guilty if he believes that the evidence was not sufficient in the court below.
Louis F. Claiborne: Mr. Justice Black, I must refer to that. I think that several decisions of this Court which make it clear that it is a proper function of Congress to legislate in the area of presumptions and inferences and in Tot itself the Court indicated that Congress might go further in screening rationality than a jury on its own could be permitted to do.
Hugo L. Black: I do not think those cases, any of them have canvassed and concerted the effect of letting the legislative branch intrude in this field with reference of the trial of a defendant. They can prescribe the law, but how can they prescribe a rule that tells the jury “you must, you may or you shall convict or not convict on this evidence” unless you want to say that in doing that they have limited the scope of the crime?
Louis F. Claiborne: Well, they haven't altogether limited it, because they've left it's merely permissive and the jury is not instructed that it must convict on this evidence and to that extent, there is the difference between enlarging the crime and merely creating a presumption, leaving out the question of rebuttabilty.
Byron R. White: I suppose [Inaudible] but legitimate.
Louis F. Claiborne: They deferred if one wishes to the jury by letting the jury decide whether in a given case presence should be a crime.
Hugo L. Black: Whether it's a crime?
Louis F. Claiborne: Whether it is a crime.
Hugo L. Black: Well, that's why the two get mixed up, that's what bothers me.
Earl Warren: Very well, Mr. Claiborne. Mr. Davis.
Joseph H. Davis: Mr. Chief Justice associate justices, we might address ourselves at first to the fact that it might be said that this is ordinary Whiskey case or we say that in the District Court where these cases are usually tried as just another liquor case, but it is not. And what disturbs the respondents in this case is the fact that in effect Congress has said that “If you are there, it's enough to convict you of this or any number of other offenses under the law.” Now we take the position, may it please the Court, that this is clearly unconstitutional. Of course, the facts in this case are such as I think we would probably have to concede that they did not need the presumption statute in this case, and probably used this for charging, because you can't dispute the fact that 4:30 in the morning out in the rural area under these circumstances gives a natural inference to something.
Potter Stewart: I suppose the Court is under the – under the duty to charge it though if it's constitutional, isn't it?
Joseph H. Davis: If it's constitutional they have a duty to charge them and that was what done in this instance, although I think the trial judge probably covered other areas in his charge what would have been sufficient, had the presumption been left out or put in insofar as giving the jury an adequate picture of what they must do to sustain a conviction. But our point is this, that we're not particularly talking about Gainey, Barrett, and Johns in this case at 4:30 in the morning, we are talking about whether or not the Congress can say that there is a rational connection between the presumption or between the establishment of this fact and this inferred fact. Now, I think that is the only way that this statute can be upheld, that there is a rational connection between the inference of possession as gleaned from the proof of presence, mere presence. Now, we are not talking about presence coupled with admissions. We're not talking about presence coupled with a knocking on a still head or doing this or doing that. We're talking about mere presence as if the man were sitting over there literally on a log watching an operation in full progress. Now, is there a rational connection under the case of this Court between the establishment of that one small fact of mere presence and on the one hand possessing a still or carrying on the business of a distiller or some eight or nine other areas. The government seems to tell us that there's a rationality here because you have on one hand the establishment of presence and it can lead into one of, I think 11 different directions concerning the operation of a still.
Potter Stewart: Now, we have two of them here now?
Joseph H. Davis: We only have two of them, but I mention that for this point, sir. Presence of a stolen automobile, recently stolen automobile is one thing. That presence cannot be used to say or to infer that you not only stole this automobile, but you did this or you did that or you did eight or nine other crimes. Possession of opium or marijuana cannot be said to say that not only did you receive it unlawfully or obtained it on unmarked container and so forth, but there are eight or ten other laws that you are guilty of because you merely posses this. We don't have that in those situations and so you have a reasonable inference from the possession of recently stolen property to the fact that it's a guilty possession if you please. But here, just the mere presence at a table for instance where several other people are present, that fact alone can cause you to -- under the statute here to go into several different directions. That is our point as in opposition to the government's view that there's a rational connection between the fact proved and the inference to be drawn. Now, the government would have us to --
Byron R. White: But what if the effects were just limited to the -- the presumption was useful or made useful only in connection with one item, namely operating the still.
Joseph H. Davis: I think that would probably help the government's position, Mr. Justice White, but --
Byron R. White: Wouldn't you still make the same argument?
Joseph H. Davis: I would because mere presence can be a guilty presence if you please or an innocent presence. There are so many reasons why a person could be at a particular point at a given time. Now, presence -- I would like to say this, presence in the sense that we are talking about that is mere presence without anything else we say would be insufficient to warrant the inference that this man sitting here, not doing anything is carrying on the business.
Byron R. White: Except if he knows, he's at a still.
Joseph H. Davis: He is at a still, yes sir.
Byron R. White: The most thing right around the still and what's the different between [Inaudible]
Joseph H. Davis: No sir, but some are. Now, --
Arthur J. Goldberg: Is there anything [Inaudible]
Joseph H. Davis: Pardon?
Arthur J. Goldberg: [Inaudible]
Joseph H. Davis: In the Bozza case, Bozza himself was present down in the basement carrying only operation, but not upstairs making the mash.
Byron R. White: Yeah, but that was only on possession if they found?
Joseph H. Davis: On possession.
Byron R. White: But on the operation, what Bozza doesn't help you with this –-
Joseph H. Davis: No Sir, not on operation, but it help us in this sense that we noted that the government in that case conceded that the facts and circumstances running Bozza's operation that were insufficient to charge him with possession and with making mash. Now, making mash, I submit or --
Byron R. White: What kind of operation they solved?
Joseph H. Davis: The operation itself --
Byron R. White: How about the [Inaudible] of presence being a [Inaudible] that the operation should be?
Joseph H. Davis: Mr. Justice White, we had more than mere presence in Bozza. We had the testimony of the co-defendant that he came by two or three times a week and helped me. We had testimony in that case showing that he used his car on convoy purposes. We don't have any testimony that Bozza himself was merely sitting in that room in a rocking chair while the still was in operation in the basement, had that been the question I think it would have been a serious point as well that he was carrying on the business. That is the -- that is the crux of the respondent's position in this case.
Arthur J. Goldberg: [Inaudible]
Joseph H. Davis: By and large, that probably would be --
Arthur J. Goldberg: [Inaudible]
Joseph H. Davis: No sir, we have to concede of course and accept certain presumptions as being constitutional. They are, they've been ruled on by this Court, but here we would -- but in those instances, I believe we were talking about one particular thing. Here, Congress has seen fit to divide this operation into a multitude of things. Now, if they want to eliminate every statute on the book pertaining to the operation or manufacture of a Moonshine Whiskey, if it pleases the Court, except that nobody shall carry on the business of a distiller, and whoever is present at that scene -- no I will not go so far as whoever is present at the scene can be reasonably inferred to have some connection with it to the extent of proven of guilt beyond reasonable doubt. I still say that even then a presumption would be unlawful, because --
William J. Brennan, Jr.: You mean that's -- on that set of facts and the language of the cases has no rational connection?
Joseph H. Davis: I don't -- I do not think that there would be a rational connection because if Congress should do that and if it followed its reasoning in the legislative history in this instance, the purpose seems to have been to overrule Bozza, that's what they specifically say. Now, what human experience or what experience of any kind do they have at that time? I submit that they had the Fifth Circuit which consistently held that presence alone is insufficient. They had holdings in the Third Circuit which seemed to hold generally that presence was insufficient. However, in the Fourth Circuit, there were decisions to the effect of presence was sufficient. So, the human experience or the experience or the history that Congress had at the time was a state of flux between the circuits and yet they want us now to accept the fact that this is a reasonable, rational connection, because it's based upon human experience and events as we know of it. We submit that even under the rational connection theory that the statute would have to fall because mere presence at a still at any other illegal operation in and of itself, we do not think is sufficient or is a crime, I will put it that way. And not being a crime, I think that we have to protect the great -- very, very minute minority if you please who might be there as a purchaser as one who went down with his friend at 4 o'clock in the morning after a party to see what was going on, but his mere presence is deemed to be sufficient to sustain a conviction of guilt.
Hugo L. Black: But even if he explains [Inaudible]
Joseph H. Davis: He could, but we take the position, may it please the Court, that he doesn't have to. That the burden is always on the government to prove his guilt beyond a reasonable doubt and they can't take mere presence and say you are guilty. Because the case could be prosecuted within a very, very few minutes. We found the still in such and such a time, John Doe, was sitting there on a bench at 4 o'clock in the morning. If he elects to remain silent for reasons best known to himself whether or not he's had a conviction, otherwise unrelated to this for income tax evasion or anything unrelated to the manufacture of illicit Whiskey, granted he suffers a peril of remaining silent, but to get on the stand and explain why he was there at 04:30 in the morning even though it be an innocent explanation, would be practically destroyed by the fact that two years before he served time in penitentiary running down somebody, say an involuntary manslaughter case.
Arthur J. Goldberg: [Inaudible]
Joseph H. Davis: That's true. Yes, sir. And getting back again to our initial statements that Congress did not need this presumption, that they have as one Counsel said yesterday in the argument in a totally unrelated case. They have had an amazing amount of success in this Moonshine Whiskey cases. In the state of my place, I have prosecuted them for six years myself in U.S. attorney's office and I've tried to defend them against these charges of presumption statute. But they have had an amazing amount of success, because under the usual run of circumstances they have enough to sustain a conviction of guilt of this so called illicit distilling statute. And what they want to do apparently is just to nail down that one area and to eliminate by arbitrary inference the consistent holdings of two of the circuits about mere presence. Their remedy is not to presume a man guilty whether it's permissive, rebuttable, conclusive or not. The point is to -- we say that the enforcement agencies with some self-restrain could wait two minutes and let the man get out of the truck and start unloading the butane gas tank. I'll let him start doing this or doing that and that is our point, that the remedy lies not in presumptively making a man come forward at his peril. That's of course be self incrimination phase of it, but that is a part and parcel of this transaction. But under the circumstances as this case has been laid and as the charge below reflected, there can be no rational connection between mere presence at the scene of a particular thing because we have too many different areas that that inference could lead to if it --
Hugo L. Black: If you're right in that argument, then could the judge review his verdict is guilty stand even without the presumption – forget, suppose Congress has passed no presumption. You're simply arguing if there's no evidence to show that he is guilty and you say that Congress had no right to say that there is no evidence to show he is guilty it's a -- has no right to say while you are presuming he is guilty unless he explains it.
Joseph H. Davis: That is, Mr. Justice Black, not exactly, I take the position that Congress cannot say that this and this alone is sufficient without more and take it away from the trial judge. They seem to take it away --
Hugo L. Black: If they can't do that could a jury convict on that and that alone.
Joseph H. Davis: Presence, mere presence.
Hugo L. Black: Yes. What I'm saying is –-
Joseph H. Davis: I don't –-
Hugo L. Black: What you're saying is –-
Joseph H. Davis: -- don't think so –-
Hugo L. Black: There is not enough evidence to convict, the jury – the Congress don't have a right to say you presume he's guilty if he doesn't explain it. Could it [Inaudible] you stated for the jury convict so that the Court would be justified and let the convict stand?
Joseph H. Davis: I don't think so in this mere presence.
Hugo L. Black: Is that what you're arguing? You're saying that neither can Congress pass a law making any presumption?
Joseph H. Davis: Making mere presence a crime. That's in effect of what it amounts to. There has to be something else and they don't need the presumption to get it.
Hugo L. Black: Well, it does indirectly if I say it was a presumption which can be explained.
Joseph H. Davis: I think we need a practical assumption or a practical inference to cover the usual run of circumstances rather than a statutory presumption by Congress, which under the multitude of --
Hugo L. Black: I presume that's one of the reasons that the law have evolved the system under which the legislative branch can create crime, only the trial of a Court in bringing back the conviction and here, you have a distinction, legislature and [Inaudible] say that this extent is not up to the Court. We are saying here to have this effect.
Joseph H. Davis: We're just saying that – that Congress whatever their motives may have been in this instance just cannot do this.
Hugo L. Black: That's alright, but you think he has [Inaudible]
Joseph H. Davis: Yes sir.[Attempt to Laughter] Granted it was -- they were having practical difficulty as shown in the legislative history. It's cited in the opinion of the court below, they were having practical difficulty in convicting people in view of the holding of this Court in Bozza making these various crimes and that's what they are, if Your Honor please, crimes and a crime has to be specific and a man has got to go in before 12 men --
Hugo L. Black: But why [Inaudible] have in effect at the difficulty in what way? You mean they weren't given enough conviction?
Joseph H. Davis: Apparently, they were having practical difficulty in that this Court in Bozza had broken down the various categories.
Hugo L. Black: What happened from that?
Joseph H. Davis: The Court's --
Hugo L. Black: I don't – I don't quite understand with your argument.
Joseph H. Davis: The Fifth – the Fifth Circuit apparently and as well as other circuits since Bozza have – was -- broke the various matters down into separate distinct crimes started holding as a head in the past that mere presence in these situations was not sufficient to sustain a conviction. In other words, the Fifth Circuit has consistently held that mere presence without law is insufficient to sustain a conviction on any of these categories.
Hugo L. Black: You mean the complaint there was that the judges in reviewing the evidence to see whether there was enough to convict, would not hold that was enough?
Joseph H. Davis: Just the Fifth Circuit, sir.
Earl Warren: Is there any legal distinction, Mr. Davis, between this presumption and some of those in the narcotic laws?
Joseph H. Davis: Mr. Chief Justice, I think so for this reason. My argument a few moments ago attempted to relate that and that we have one particular violation of law that we're dealing with and that is possession of narcotics and the possession of this narcotic is a physical possession where you have control over it or dominion or exercise in some manner that degree of supervision, absent ownership or immaterial of ownership, that is a type of possession, it's a physical possession. Here sitting at a place or being present at a place, doesn't have that requisite degree of control over the law, just mere presence that we're talking about in this case.
Earl Warren: Well, would you -- could this be sustained if they said if he had been proved to commit one crime that you could presume that he committed another in connection with the liquor laws? The mere fact that he committed one crime is a presumption that he committed another?
Joseph H. Davis: I believe that is --
Earl Warren: Would that be different from the one you have?
Joseph H. Davis: I don't think the proof of one in the crime could be paramount, Mr. Chief Justice, so have we --
Earl Warren: Well that's – that's what I'm referring to in the narcotic laws. For instance if they found him in possession, the law says that that possession unexplained is proof of the fact that the tax was not paid on it.
Joseph H. Davis: Of course they have -- you will know the nonpayment -- the tax makes it the crime in the first instance.
Earl Warren: For another the crime though, and may sentence him consecutively for those crimes. I'm just – I'm not asking you to defend that. I just want to know if there's a legal distinction in your mind between the two.
Joseph H. Davis: The only legal distinction I could see and would be prepared to comment on now is the nature of the possession that is a physical possession of or having control or dominion as opposed to the mere presence as encompassing possession. I'm not prepared to argue, may it please the Court on [Inaudible]
Earl Warren: I don't ask you to argue at all.
Hugo L. Black: You're really arguing on the basis of the Tot holding, aren't you?
Joseph H. Davis: Yes, sir, no rational connection.
Hugo L. Black: Forget the legal language, legal language sometimes is confusing –-
Joseph H. Davis: It's quite true, sir.
Hugo L. Black: What we had there was a Congress view of presumption that [Inaudible] from the mere presence only possession of a gun, that was enough to show he has been [Inaudible], was that it?
Joseph H. Davis: Received on –-
Earl Warren: At the same time for the others [Inaudible]
Joseph H. Davis: Prior after some [Inaudible]
Hugo L. Black: [Inaudible] had to be convicted prior to that.
Joseph H. Davis: Yes, they had to be convicted prior to that.
Hugo L. Black: And that our Court held that they couldn't convict on this evidence. What you're saying here that there's no more right to draw the inference from mere presence at least in some circumstances without more than there was in that case?
Joseph H. Davis: That's right sir. Simply that I could be there for any number of reasons, legal or illegal, but yet I'm -- that mere presence under this statute is enough and it makes them put it to the jury and jury always being practical. People in some instance is when a case of this type comes up just a lot of -- a lot of time goes along and certainly would be -- saying as overcame by this charge that this is sufficient unless this man gets up here and explains it.
Hugo L. Black: It's certain to say, he didn't explain it?
Joseph H. Davis: Yes, sir. And it says that the judge says, well, if he didn't explain it, he's guilty of it. That's what we say is the trouble in the situation of this time.
Hugo L. Black: Did you have more than presence here?
Joseph H. Davis: Yes sir. I frankly think that you did. You had the attempt to run on a part of one [Inaudible] and another self is insufficient. You had the admission of one that they had been down there to operate it and you might infer legitimately that they had some knowledge of the location of that isolated area.
Hugo L. Black: They haven't found barrel or something like that?
Joseph H. Davis: They had a butane gas cylinder on the truck. They didn't have a chance to unload it, as a practical matter and that's the reason that they -- there were other circumstances as the Court found sufficient to warn or --
Hugo L. Black: You think that changed in the situation?
Joseph H. Davis: No, sir because we are dealing with mere presence as an overall situation involving the administration of criminal justice in the Federal Court.
William J. Brennan, Jr.: But if you prevail this case would have go back to new trial, would it not?
Joseph H. Davis: That's right, sir.
William J. Brennan, Jr.: And on this evidence, do you suggest, assuming you prevail on the presumption point, on this evidence do you suggest there would not still be a case for the jury?
Joseph H. Davis: Of course, I will have to view it more closely at the time that it went to the jury, but I would take the --
William J. Brennan, Jr.: Don't bother, I won't question that.
Joseph H. Davis: No, sir, well, as a matter of fact --
William J. Brennan, Jr.: May I ask this though?
Joseph H. Davis: As a matter of fact one respondent in this case did, the other one elected to serve his time and has already served it and there's a –-
William J. Brennan, Jr.: [Inaudible]
Joseph H. Davis: -- question of about the third one, [Inaudible] about you ascertain it before him.
William J. Brennan, Jr.: Yes, let me get back to you on that one. Are you saying in effect this -- that on the basis of mere possession, Congress cannot constitutionally deny the defendant the right to a judge's decision that there's no jury question? As I gather the statute now on the basis of mere possession requires the judge to submit for the jury's determination that requires to find guilt, but there is then a jury question [Inaudible]
Joseph H. Davis: The jury question?
William J. Brennan, Jr.: Whereas, that is, that's the effect in the statue isn't it?
Joseph H. Davis: Yes sir.
William J. Brennan, Jr.: Whereas if we didn't have the statute or the judge I take it would be free to say there's no jury question and dismiss the indictment against the defendant?
Joseph H. Davis: I think the judge could well do that, the trial judge. Now it seems to me --
Byron R. White: (Voice Overlap) require to do it in the Fifth Circuit?
Joseph H. Davis: I beg your pardon Sir?
Byron R. White: If only -- the only evidence they had was possession in the Fifth Circuit --
Joseph H. Davis: Presence, presence [Inaudible]
William J. Brennan, Jr.: [Inaudible]
Byron R. White: Presence, and that's all they had, the judge would have to dismiss it.
Joseph H. Davis: The judge would have to dismiss in our opinion, but the statute makes him to put it to a jury and the government takes the position that precludes the judge from then granting of verdict of acquittal N.O.V. and that is a serious conflict between the legal aspects of a set of facts as opposed to the usual solemnity that we give defining of a jury.
William J. Brennan, Jr.: Well that's – [Inaudible] against you on this on the whole line of cases, hasn't that sustained the right of Congress as long as there's so called rational connection, they deprive judges the right to withhold the cases from the jury?
Joseph H. Davis: I don't -- it may -- it may -- I don't follow the reasoning to the extent that it deprives him of the right to writ -- to correct the apparent error, say if a jury did just go contrary to --
William J. Brennan, Jr.: Well, but when it comes down is that the Congress has made a determination based on experience, that if there is a certain thing in this instance a presence that supports an inference of ownership or whatever it may be of the particular still involved, isn't that what it is?
Joseph H. Davis: I should --
William J. Brennan, Jr.: Congress has made that?
Joseph H. Davis: I suggest, Mr. Justice Brennan, that if they did decide -- did report this statute out with that finding of legislative history that is not contained in it as I know it and as I have been able to find it, there is no mention about human experience.
William J. Brennan, Jr.: Well, what is the reason not that must be what the Congress says or thought fit to do with it, otherwise why would they create it?
Joseph H. Davis: Apparently, they realized the difficulty in these situations and sought to approach it apparently in the best possible way. They did not see fit to redefine the crimes nor to eliminate any of the crimes and make one big consolidated care on the business and if you're there, you are guilty. They maintained the crimes as they were and has been interpreted by this Court, and narrowly defining the various stages of this process and they attempted to remit of the impracticality of obtaining convictions by the inference of presumption.
Potter Stewart: Mr. Davis?
Joseph H. Davis: Yes.
Potter Stewart: Tot and these other decisions that you just submitted, the matter of reasonable of rationality based on common factual experience and early in your argument Mr. Justice Goldberg asked you a question, which I think you didn't answer, because I think you weren't given an opportunity to answer, there's another question, but I'd like to ask you again. In common experience, what other people would be at a still except those connected with the operation of it? Now, I grant you, I can understand the lost aviator who is parachuted or the mountain climber or the fisherman, but --
Joseph H. Davis: Well, I think --
Potter Stewart: And there are such cases and those people could obviously very easily explain their presence, but in the course of normal human experience, what other people would be at a still, the way this thing actually works in real life except people connected with this operation?
Joseph H. Davis: Human experience as I view it from a defendant standpoint of the theoretical –-
Potter Stewart: Well, a part of all these cases (Voice Overlap) --
Joseph H. Davis: I'll say this [Inaudible]
Potter Stewart: -– the human experience to the facts of life?
Joseph H. Davis: I think that there are -- that common experience would show that in a goodly number of situations involving the so called illicit operations, there are those who go and pick up things that would pick up the finished product for instance, who wouldn't have a thing in a world to do about letting one hand to work there or to set it up or to be considered as having owned it. In other words, they're in the background.
Arthur J. Goldberg: The aviators and the [Inaudible]
Potter Stewart: In the operation?
Joseph H. Davis: Aiders and abettors to what? That is our question.
Arthur J. Goldberg: The operation --
Joseph H. Davis: Probably carrying on the business? That is a question that's rather close, Mr. Justice Goldberg, as to whether or not there will be aiders and abettors in that particular transaction, in that particular operation presumably so under the holdings of this Court.
Arthur J. Goldberg: [Inaudible]
Joseph H. Davis: But there's another statute by holding raw material and just when he is there, are we going to say he holds raw material or that he aided in abetting and working which has a different degree of punishment.
Potter Stewart: You might have all kinds of problems under this legislation with respect to the cases like Lovander and Ladner or whatever it was and Barrel against the United States, but those problems aren't before us now, that is the duplicity of punishment --
Joseph H. Davis: No sir. I don't, I think the Government points that up in their brief, but there is not --
Potter Stewart: There are obviously all sorts of problems like that, but those aren't before us here are they?
Joseph H. Davis: No sir. And again, I will restate the respondent's position that there is no rational connection between the inference as to these 10 or 11 different situations. We're not dealing with one isolated crime. We're dealing with a series of circumstances which branches out into several. And if he can be innocent of one and guilty of the other to infer that mere presence go this way as opposed to that way is a strained inference indeed. Thank you, sir.
Hugo L. Black: Now you didn't quite answer Justice Brennan's question. I didn't quite get it --
Joseph H. Davis: About the evidence on the --
Hugo L. Black: But it is there, it is there. The old system has grown up in this statute maybe not -- maybe the Constitution doesn't require it under Due Process Clause, the evidence of criminal cases, the evidence will be given to the jury, they still have the right to draw in? The system has also grown up along by the signs of it, that if the Court does not agree with the jury, the judge does not agree with the jury, he can set that judgment to aside that being a judicial matter. Now, what would be the effect here if the jury did convict on nothing in the world but possession? The trial judge reached the conclusion that there is no right, no connection between the two, quite contrary to Congress, could he set it aside?
Joseph H. Davis: I think so because --
Hugo L. Black: Why? I mean the Constitution gives him a right to go contrary to them --
Joseph H. Davis: Traditionally, questions of law are for the trial judge and questions of facts are of course for the jury and if the fact as found by the jury do not constitute a crime as a matter of law, I think that the Court has the duty and the power.
Hugo L. Black: But you would do that, if he did so, wouldn't he be going contrary to the command of Congress if that was enough?
Joseph H. Davis: He might be well doing it, Mr. Justice Black, but I think -- I think that judiciary could do that.
Hugo L. Black: Because there's nothing in the world but possession?
Joseph H. Davis: If – if the judiciary could not do that not at the trial level but eventually at this level, then this Court would be powerless to hold any.
Hugo L. Black: So, how could we do it if the Congress had said that's enough?
Joseph H. Davis: You could not touch any statute of Congress. They would be immune from review or interpretation in light of the Constitution.
Hugo L. Black: Well, we would have to invalidate the act, the Congressional act, before he could do it. So, the Congress has said, there is a rational connection. But when he says there is not a rational connection, he has to invalidate the act, doesn't he?
Joseph H. Davis: Yes sir. And he could have done it at trial level.
Byron R. White: Isn't that what happened in Tot, the Court disagreed with Congress is the one that met rational connection, it was?
Joseph H. Davis: That's right. That's the problem here. Thank you sir.