Warren E. Burger: We'll hear arguments next in 71-1136, Tillman against Wheaton-Haven. Mr. Brown, you may proceed whenever you are ready.
Allison W. Brown, Jr.: Mr. Chief Justice, may it please the Court. This case is virtually indistinguishable from a case which this Court had four or three years ago called Sullivan against Little Hunting Park. The issue here as it was there is whether a community recreation association may discriminate on grounds of race which respect the persons who are otherwise eligible to use its facilities. Wheaton-Haven Recreation Association, the organization at issue here is virtually a carbon copy of Little Hunting Park, the association which was at issue in the Sullivan case. The principle characteristic of Wheaton-Haven Recreation Association is set by its bylaws which state very unequivocally that membership shall be open to bona fide residents, whether or not home owners of the area within a three quarter mile radius of the pool. The facility involved, which is the principle function of Wheaton-Haven is the swimming pool that it operates. The swimming pool is similar to those that are characteristic of many suburban areas in the United States and most particularly in the Washington area. In Washington suburbs are some 100-150 of them that have been built by neighbors, people in the neighborhood on a cooperative basis. They are principally predominant in the areas where of course there are no public swimming facilities. Wheaton-Haven has an initiation fee of $375 and in addition, annual dues of $50-60 a year. I regret to say that on Page 4 of the petitioner's brief, there is a typographical error, where it says that the annual dues are a $150-160 a year, it should be $50-60 a year.
Warren E. Burger: Which page was that, again?
Allison W. Brown, Jr.: That's Page 4 of the petitioner’s brief. The annual dues are $50-60, not a $150-160, that’s the blue brief. The bylaws provide that numbers can be taken from outside of the three quarter mile radius of the pool provided that such numbers do not exceed 30% of the membership of the association. Members who are brought into the association, who pay their dues are subject to approval of the Board of Directors or the membership of the association. One of the characteristics or one of the features of membership in the pool is that a member upon selling his house, may transfer a first option to his vendee. Now, he does this by selling his membership back to the association and that vendee then has a first option to buy that. That is -- and that gives him a preference over any persons who are on a waiting list. The maximum number of members permitted in the pool being 325 families. Wheaton-Haven was constructed in 1958 under the terms of a special ordinance adopted by the Montgomery County, Maryland Council which is adopted and designed to facilitate the construction of these community recreation -- swimming pools. The Montgomery County Council stated that it wished to promote the building and construction of these pools because they served an important community function by providing recreation facilities which were not otherwise available in the area. As a condition of getting zoning approval, the Wheaton-Haven was required by the zoning authority to show -- demonstrate that 60% of its construction cost were subscribed. In other words, that was in fact meeting a need of the community. As a means of creating its initial membership, the association conducted a door to door solicitation campaign in the area. It distributed an advertising circular and charter members -- memberships were made available on the payment of a $20 pledge. It's original organizational meeting was a public meeting held, or I should say its original promotional meeting was a public meeting held in the auditorium of the Maryland National Capital Park and Planning Commission, a government agency which has a public auditorium. Wheaton-Haven has always had a sign posted on its premises which is visible from the street in front which states the name and telephone number of the Membership Chairman. In more recent years, since this litigation has transpired that sign has -- the name of the Membership Chairman and his telephone number has been removed. At the hearing before the zoning authority in 1958, when Wheaton-Haven sought commission to build its facility, its swimming pool, its representatives testified that the pool would serve the needs of the community as a whole and that it was needed as a deterrent to Juvenile Delinquency in the neighborhood. It was specified that the pool would not be used for private social functions. The construction of the pool was performed by a contractor from outside the State of Maryland and the pool utilizes pumps and filters and other mechanical devices which originate from outside the state. Now, in the spring of 1968, to get down to the facts of the discrimination here, Dr. and Mrs. Harry Presses sought membership in the pool. They are a Black family who lived in the neighborhood within a three quarter mile radius of the pool. The membership, they were told was unavailable to them because of their race or color. Similarly in 1968, in July of that year, Mr. and Mrs. Murray Tillman, white members of the association brought a Black guest, Mrs. Grace Rosner to the pool and although she was admitted on a first occasion, she was later denied admission under the guides of the new rule which pool adopted after her first entry stating that henceforth only relatives of members would be admitted. It is undisputed on the record that the pool has and enforces a discriminatory policy with respect to memberships and guests. The suit in here, in this case was initiated in Federal District Court in Baltimore on the basis of the Civil Rights Act of 1866 and the Civil Rights Act of 1964. The District Court held against the plaintiffs and upon appeal, the Court of Appeals held against the plaintiffs. The basis for their decisions in both instances was that this case was distinguishable from Sullivan versus Little Hunting Park. It is the petitioner’s position that both courts violated the Principle of stare decisis. This case is on all four with Sullivan versus Little Hunting Park. There are seldom two cases with facts more similar. The Court of Appeals or both courts constructed grounds for distinguishing the two cases. I will deal principally of course with the Court of Appeals decision. The Court of Appeals committed two basic errors. First of all it misconstrued the Civil Rights Act in 1866, which had been the basis for this Court’s holding in Sullivan versus Little Hunting Park. Secondly, the Court of Appeals relied on insubstantial and indeed in some instances wholly false grounds for distinguishing this case, Sullivan versus Little Hunting Park and concluded that Wheaton-Haven Recreation Association was a private club and hence exempt from both the Civil Rights Act of 1866 and of 1964. I will get to the question of whether or not Wheaton-Haven is a private club in a moment, since that bears on whether or not it is indeed covered by the 1866 law and the 1964 Act. But I would like to first point out the matter in which we believe the Court engaged -- basically misconstrued the Civil Rights Act of 1866. That Act the Court will recall was the basis of this Court's decision first in Jones versus Mayer Company. In Jones versus Mayer Company the Court held that the Thirteenth Amendment and the Civil Rights of 1866 applied to private discrimination and that they were intended, that the Act of 1866 was intended to abolish all badges and incidents of slavery, and that the Act was to be broadly construed. The 1866 Act has since been incorporated in -- that is since its adoption has been incorporated and is now part of 42 U.S.C 1981 and 42 U.S.C 1982. 1981 guarantees Black person’s the same right as White persons, to make and enforce contracts and 1982 provides that Black person shall have the right as White persons “to inherit, purchase, lease, sale, hold and convey real and personal property.” In Jones against Mayer and indeed in Sullivan versus Little Hunting Park, there were some members of this Court who dissented and who in fact doubted the wisdom of applying the 1866 law to private discrimination in housing and in Sullivan case to a membership in a swimming pool association because they felt that more emphasis should be given to the Court or more significance should be given by the Court, should be placed by the Court upon -- the more recent enactments by Congress of the Civil Rights Act of 1964 and the Fair Housing Act or the Fair Housing Provisions of the Civil Rights Act of 1968. In other words, the dissenting members in those cases felt that those case -- those laws and more recent laws should be given -- should be made applicable and they questioned the wisdom of resurrecting the old 1866 law. However, since that time, since the Jones decision and since the Sullivan decision, numerous court decisions have now applied both 42 U.S.C 1981 and 1982 to a variety of kinds of racial discrimination. Provisions have been applied in cases of employment discrimination, in cases of housing discrimination, in cases of discrimination with respect to public accommodations, schools, cemetery plots and so forth. And most recently a significant development occurred which unfortunately we failed to be aware of in time to cover in our brief and that is that Congress has now in effect ratified this Court's decision in Jones against Mayer. On February 8 and 9 of this year, during the debates on the equal Employment Opportunity Law and the question of whether enforcement power should be given to the Equal Employment Opportunity Commission, an amendment was introduced by Senator Hruska which would have withdrawn any right of an individual to seek relief in the federal courts on the basis of 42 U.S.C 1981. It would have limited one's right of redress to Title VII of the 1964 Civil Rights Act, namely the Fair Employment Provisions of that Act. The Hruska Amendment was debated, it was criticized by the floor leaders for the Bill, the legislation was under consideration. Senator Williams of New Jersey and Senator Javits of New York, those Senators hailed this Court's decision in Jones against Mayer and specifically expressed approval of the construction that the judicial laws which has accrued, which in fact holds that Title VII of the 1964 Civil Rights Act and the Act of 1866 provide alternative means to redress individual grievances. The result was that the Hruska amendment was defeated. So therefore it seems apparent that there was no longer any basis for holding back, shall we say, on the meaning or the construction to be given to the 1866 law. It applies here to this case and the Court of Appeals and indeed the District Court, it seems to me engaged in a very serious error by failing to follow this Court's admonition that the plain words of the 1866 law, should be broadly construed and complied with. Now the plaintiffs base their sue as they indicated on both the 1866 law and the 1964 law. Essentially under the 1866 law, they have claimed that there were contract and property interest of their's which had been impaired by the discrimination committed by the association. The plaintiffs depresses who had sort to purchase a swimming pool membership claimed, asserted in the complaint that their contract and property interest had been denied and denied them which were otherwise -- interest which would have been available to them, had they been of the Caucasian race. The Tillman plaintiffs, the White plaintiffs had contract and property interest involved in the swimming pool membership. Their allegations and their position in this case was similar to that of the plaintiff Sullivan in the case of Sullivan against Little Hunting Park. There not only were their own interest being impinged or impaired by, on the basis of racial considerations but in addition they were in a position of asserting the rights of the Negro guest that they had brought to the pool, Mrs. Rosner. Mrs. Rosner’s interest grows from the fact that as a guest of Tillman's she had a licensed or an easement that was enforceable and recognizable as a property for contract interest. Now the other ground aside from its misconstruction of the 1866 law which we claim the Court of Appeals seriously departed from this Court's precedent on was the issue of the private club. The court held that because in it's view Wheaton Haven was a private club, it fell within the private club exemption of the 1964 Act. This exemption, exempts from the public accommodation provisions of that Act, any private club or other establishment not in fact open to the public. Now the Court of Appeals committed additional error in our view by -- it's quite clear by reading that exemption as a limitation on the 1866 Act. Now this Court both in the case of Jones against Mayer and in the case of Sullivan against Little Hunting Park, has specifically held that the later enactments of Congress were not -- did not in anyway limit or qualify the earlier enactments and indeed that is the effect now of many other court opinions, decisions which we have cited in our brief and as I just indicated it's -- certainly the effect also of the Congress’s rejection of an amendment which would have constituted a limitation on the 1866 Act. Now the question then arises, what kind of a limitation if any is there on the 1866 Act so far as the matter of a private club is concerned. We would submit that the only limitation is a constitutional limitation. There is we would agree a constitutional right of privacy or freedom of the association. This Court has never defined that in very explicit terms in circumstances comparable to these. The right of privacy received it's fullest discussion, I suppose in as far as I know in the case of Griswold against Connecticut which involved of course the matter of birth control devices and the Court held that there was a constitutional right of privacy which was part of the penumbra of the Bill of Rights, that has not been expanded upon to any great degree as far as I know in subsequent decisions of the Court. There have been holdings that there is a constitutional rights of free association which is based on the First Amendment and that as a result associations may not be interfered, unduly interfered with as a result of state action or infringement of their constitutional right of association, of their free association. However, that issue is not really -- those issues are not really involved here to the extent that they need to be the outer limits or the privacy need to be explored or delineated by this Court. The real question here was resolved in Sullivan versus Little Hunting Park, where the Court held very clearly that Little Hunting Park was not a private club because it had no program -- no plan or program of exclusiveness; no plan or purpose of exclusiveness and that it had no criteria for excluding people from its facilities, other than race. Now, we submit that exactly the same thing is true of Wheaton-Haven. As indicated by the bylaws and as indicated by the record here, there has never been a basis, any ground, there have never been any grounds for excluding people that have been -- that are in any way reflected in the record. There is indication that one person in this association's 10-year history was excluded, the record doesn't indicate why. It doesn't indicate the person's race, it doesn't indicate where the person lived, whether he might have been outside the geographic area and indeed, it doesn't indicate whether he might have been afflicted with some dreaded disease, which would make his presence in the swimming pool undesirable. So, there is no record of excluding people. There are no criteria anywhere that could indicate that the association had intended to exclude people so long as they lived within the prescribed geographic area. With respect to the 1964 Act, there has been some questions as to just what meaning should be given to this private club exemption in the 1964 Act? Well, it would seem to me that as a practical matter, although the -- that as a practical matter that the exemption in the 1964 -- from the 1964 Act should be read to be coextensive with the constitutional limitation, which as I say, I would concede applies to the 1866 Act. I say that on a basis of the statutory history, the congressional history, which we have eluded to in our reply brief, where Senator Humphrey, who is the Floor Manager for the 1964 Civil Rights Act in explaining the exemption for private clubs stated that it was intended to protect only the genuine privacy of private clubs, whose membership is genuinely selected. Well that language certainly, parallels very closely the language of this Court in Sullivan versus Little Hunting Park and it seemed that there would be no basis for creating different criteria or a different right of privacy. The only difference is that the Court of Appeals made this error of reading the statutory provision as a limitation on the 1866 law. There have been references made in the briefs and of course, the question naturally arises in anyone's mind is the difference between this case and the famous Moose Lodge case, which was decided by this Court quite recently. And of course, the difference between this case and the Moose Lodge, between Wheaton-Haven and the Moose Lodge is like the difference between day and night. The constitution of the Moose Lodge organization specifically states that membership is restricted to male persons of the Caucasian or White race above the age of 21 years and not married to someone of any other than the Caucasian or White race, who are of good moral character, physically and mentally normal, who shall profess a belief in a Supreme Being. Moose by its own definition, is exclusionary, it's a traditional fraternal organization.
William H. Rehnquist: You are not claiming here that the constitution prevents the respondent from doing what it did you are relying on statutes, aren't you?
Allison W. Brown, Jr.: Yes Sir.
William H. Rehnquist: Well, isn't that an other distinction between Moose Lodge and your case?
Allison W. Brown, Jr.: Of course, of course. Obviously, that case involves state action and I only cited it because it has been relied on by the respondents here, that is to suggest that because the Court indict him or I guess, really assumed in that they didn't indict in the court, the basic assumption in that case was that Moose Lodge a private organization and I am simply saying that, that so be it but that this Wheaton-Haven is wholly distinguishable as an organization, simply because Wheaton-Haven has no exclusionary criteria of the sort that exists in Moose Lodge.
Warren E. Burger: Well, you have said that it has an exclusionary criteria, a parameter of three quarters of a mile?
Allison W. Brown, Jr.: That's the only one.
Warren E. Burger: And none other?
Allison W. Brown, Jr.: None other, no Sir, and it's open specifically by its own bylaws to everyone else within that parameter.
Harry A. Blackmun: Mr. Brown, going back to your property right argument, on what specifically do you base this, on the option?
Allison W. Brown, Jr.: Well, no, not specifically sir. The option is merely one of the aspects of the property interests that is involved --
Harry A. Blackmun: But your brief is saying whether or not the option existed?
Allison W. Brown, Jr.: Essentially. Although the option, well, I don't mean to say it would be the same, but the option is one of the indicia of the fact that the pool membership here is an incident of real property in that neighborhood.
Harry A. Blackmun: And this is so despite the fact that there must be membership approval even for the purchaser of a former member's property?
Allison W. Brown, Jr.: Yes, yes. But that membership approval, there is no evidence that it has ever been utilized other than in the one instance that we referred to. But certainly by making that option, putting that option in there, it adds to the inducement of persons to buy a membership and it increases the attraction and value of homes in the neighborhood.
Warren E. Burger: What kind of reasons could be properly used under their voting power to pass on new members? Did they say for example they won't take any chronic alcoholic or drug addict, what would be the areas?
Allison W. Brown, Jr.: I would think that they could utilize, yes, the kinds of reasons that you are discussing, chronic alcoholic, a person with a dreaded skin disease or a person who lives outside the geographic area. But those are criteria which are comparable to those which the proprietor -- I say comparable to those, that the proprietor of any business might use, he can exclude persons and not that this is a business, but it's an accommodation. The proprietor of any public accommodation can exclude persons who are going to be disruptive, who perhaps don't wear a necktie, if you go to a restaurant. There are reasons why a place can draw lines as to a kind of the patrons it wants, but that doesn't indicate that it has an absolute right of privacy which is exempts it from the operation of the Civil Right Acts.
Harry A. Blackmun: Incidentally is the three quarter mile rule absolute? Am I correct in my impression that one living beyond three quarters of a mile from the pool might still become a member upon being accepted?
Allison W. Brown, Jr.: He can become a member if the membership rolls are open, that is not -- haven’t exceeded the limit and so long as the number of persons from outside the three quarter mile limit do not exceed the 30% of its total membership.
Harry A. Blackmun: And usually the membership rolls were not full, am I correct in that?
Allison W. Brown, Jr.: Well usually they were not. Although at the time of the events here in they were full, they were at the 325 of limit.
Warren E. Burger: Mr. Noyes.
Henry J. Noyes: Mr. Chief Justice and may it please the Court. This case was decided in the District Court on cross motions summary judgment. Counselor for the petitioners who has argued today and counsel myself, stipulated as all the facts and that is the basis upon which the lower court made its decision. Now those stipulations are contained in the transcript which we have provided in this case. I might say in spite of the fact that the petitioners in the record in this case have advised this Court that such transcript was not available. That transcript as we see it, in fact as a matter of certainty was the way in which the Fourth Circuit decided this case. Matters have not crept into the case and we heard arguments today which can nowhere be found in the record. The matters such as alleged door to door solicitation and the matters of the Montgomery County Council's hearings are not contained in the record in this case. There are matters indeed that have crept in as late as reply brief for the petitioners. Now when we analyze the case as it appeared down below and it was argued in the Fourth Circuit, really the only contention that the petitioners make is that there is no distinction between this case and Sullivan v. Little Hunting Park, that is their really issue, that is their real argument. And we of course the Fourth Circuit rejected that. Rejected it for very good reasons after having this case under advisement for over a year. The points of distinction are substantial and several between Little Hunting Park and this case. First of all, the most important, Little Hunting Park turned on the fact that there was an attempted assignment of a membership incident to the sale or lease of real property. You do not have that in this case. In Little Hunting Park, Freemen moved into the neighborhood and leased his home from Sullivan for a $129 a month. In Sullivan the court found that at least a portion of the $129 was for the pool membership because in Sullivan, the member had a natural to assign his membership. In this case, Presses moved into this neighborhood in 1967, at least a year before he ever had an idea to attempt to join this pool. There is no contention that Presses ever attempted to obtain an assignment from an existing member. There is no contention that the existing member ever attempted to assign a membership and such attempt to sign it was aborted. All Presses says that he wants to join. Now Presses did this. Presses made informal request to one of the members, or one or two members for an application. The Directors had a meeting and they voted against Presses and that was as far as it went. Then Presses --
Thurgood Marshall: Did they specifically do it on race or not?
Henry J. Noyes: In Presses’ case the record was stipulated and we do not deny it. We stipulated to get this case decided on summary judgment that Presses was denied a membership because of his race, that’s in the record, we do not deny that. And now --
Warren E. Burger: Well, that has at least the same posture as a finding of fact of the District Court, based on substantial evidence then, doesn't it?
Henry J. Noyes: At that point. Now Presses however, here is how we distinguish Little Hunting Park, in Little Hunting Park, first of all the Board of Directors had the sole control over membership. In Wheaton-Haven Presses asked for an application and they would not give an application, this was a Board of Directors vote. However the bylaws of Wheaton-Haven provide that any member at any meeting can propose a member and a majority of the members can elect in a member. You don't have that or you did not have that in Sullivan v. Little Hunting Park. So rather than have Tillman the plaintiff in this case, as a member propose him at the next annual meeting of members for membership, he did not even bother attempting to follow that route, because the board refused to give him an application, he immediately went into the courts. Now we say that there is a distinction that there frankly is a substantial body, a substantial group in Wheat-Haven who would admit Presses and vote to admit Presses, but he did not even attempt that route. He did not even attempt to poll a membership by having Mr. Tillman propose him at the meeting. Now special meetings can be called by members and 20% of the membership can call a special meeting at anytime, and 10% of the membership constitutes a quorum. Therefore as few as -- even if the membership was filled as few as 10% or 325 will constitute a quorum which could presumably lead to Mr. Presses, Dr. Presses being voted in by the members. One of things that is very important that there never was an attempted assignment. All Presses is saying and all Rosner is saying is this in its simplest form, they asked the court to adopt their propositions as follow; because of our race, we are entitled to our membership, and we are entitled to be guests when similarly situated white citizens do not enjoy such right. Those facts are admitted in the record before the District Court. When counsel in an answer to the question posed by the district court conceded that white citizens would not have the same right that Presses and Rosner now press before this Court.
Thurgood Marshall: I thought only he was asking for was an application blank.
Henry J. Noyes: Well --
Thurgood Marshall: Am I right or wrong?
Henry J. Noyes: He asked to have an application to – well, in asking for application he indicated he wanted to join.
Thurgood Marshall: And he was denied the application--
Henry J. Noyes: He was denied the application by the end effect he was told formally or informally, that at that time, even if an application was given, it would not approved, we do not dispute that.
Thurgood Marshall: What about all these other business you are talking about? He can go there and he can there, he can hold a meeting here and he do this, what has that got to do with this case?
Henry J. Noyes: It’s a point of distinction between the Sullivan v. Little Hunting Park and this case. The petitioners are relying almost solely on Sullivan v. Little Hunting Park which was a transfer --
Thurgood Marshall: I didn't note that Hunting -- Sullivan as I remember, that's the only thing about appealing to the membership and getting one third of the votes, I do not think that was in the case at all?
Henry J. Noyes: It was not in that case, but it is in this case. It was not in that case because in Sullivan, the sole way a person could get a membership was through the Board of Directors. In this particular case, the members can vote the person in this is a point of distinction that we raise, although its the most substantial point. The most substantial point we say is that this was not an attempted assignment incident to the sale or lease of real property, that is the difference. There was an attempted direct application to the membership by Dr. Mrs. Presses. It was a direct attempt by Rosner, saying she is entitled to be a guest even though the uniformly applied bylaws limit guest privileges to relatives of members. There has never been any contention that those aren't uniformly applied. Now this first option statement was rejected in the Fourth Circuit and reading the bylaws of Little Hunting Park which we have cited in our brief as compared to the bylaws in Wheaton-Haven, there is no first option. At all the relevant times in these proceedings the membership has not been filled, that is the matter of fact in this record. Now if the membership is filled, the Wheaton-Haven bylaws say that the club shall, shall buy back the membership at 90% of the initiation fee and then a person who was buying a home of that resigning member would have the first option to buy that, subject to the approval of Board of Directors. But in cases when the membership is not filled which is what we have here and have had at all the relevant times in these proceedings, the club may, the bylaws say may buy back this membership, strictly whether they want to do it or not, it's strictly up to club. They are not required to buy back. Now in Sullivan v. Little Hunting Park you had absolute right to assign or transfer membership. You do not have that in Wheaton-Haven. In Wheaton-Haven when a person desires to resign, he has to submit a written resignation and if the club is not filled as we have it now, the club may or may not buy it back. You had no such provision in Sullivan v. Little Hunting Park. If a member attempted to assign his membership and the club would not approve it, that meant he had no way of disposing or getting any money out of his membership. There is no situation in Wheaton-Haven where a contractual relationship could arise, no way, between an existing member and a prospective member. There is no way that a contract could arise under the bylaws. Now there is significance, attempt to be laid on the fact that supposedly during entire history of this club, that the record only indicates one rejection of one person, and I believe that the record indicates that person was a White person, some great significance is laid up on this. The Fourth Circuit dealt with this and the district court dealt with this, in stating the more subtle ways that private clubs operate. Once a person gets an application the approvals, usually a proforma type of thing. We do not keep rate of rejections of members. The petitioners would have us believe or have the Court believe that throughout the history of this club there has been a long record of exclusiveness of Negroes and no exclusion of White persons. Yet the record shows no prior exclusions of Negroes or White people. It shows one rejection and that was a situation which is unusual where the application has been found and then rejected, but we do not generally reach that point. Now we therefore say Your Honors that in this case, it really boils down to whether or not the Court would pigeonhole Wheaton-Haven into Little Hunting Park and the briefs and facts that I have stated indicates it is entirely different. Now as to 2000 (a) of the Public Accommodations Law, the record will indicate that the counsel in the District Court, substantially if not totally abandoned this argument under that concept. At one point the counsel said, that the only issue is whether there is a link between the association in interstate commerce, that was on Page 61. Another point he stated that if Wheaton-Haven is a private club we can see that neither Sections 1981 or 1982 or 2000 (a) apply. They said of course we believe this is not a private club, but if it is a private club than we are out on all three statues and of course if it is a private club they'd be out under Little Hunting Park too, because Little Hunting Park was decided under Section 1982. In regard to the counsel’s statement that this -- the court found Little Hunting Park to be a private club or a public operation, we do not read the case that way. The court did, in one paragraph stated there is no plan or purpose of exclusiveness, but the court did not say it was a public accommodation. That case was decided on the transfer or attempted transfer of membership incident to the sale or lease of real property. Now as to membership at this time, the way that bylaws are structured, anybody in the United States who we deem or we want to admit can be a member, or not restricted to a three quarter mile area until and unless the membership is filled. And in closing I would simply point this out to the Court, as far as exclusiveness is concerned, again the petitioner’s attempt to lay heavy stress on the fact that allegedly one person was turned down over the years. However, this club is situated in the Wheaton area which is about 12-13 miles above the district line. Homes from the district line are out for many, many miles or as thick as they can be placed, there is practically no available land. At this time we can take members because our membership is not filled, we can take memberships from anyone in Montgomery County, the District of Columbia, Prince George's County and in the surrounding Virginia areas and indeed California. Yet our membership remains below the maximum of 325. It was the same axiomatic that if we desire to fill those memberships by running an ad in the newspaper if we were in fact such a public operation then we would fill the thing tomorrow. My people prefer to keep their club at the present amount of some 260-265, and despite of the fact that they have got potential membership, potential area to draw members, some rough guess to 5 million people. We say that this is not a public accommodation. The record shows it is not. The record in the well reasoned opinion of the Fourth Circuit shows that the Little Hunting Park does not apply. We respectfully urge upon Your Honors to sustain the opinions of both lower courts.
Warren E. Burger: Thank you Mr. Noyes. Mr. Mudd.
John H. Mudd: Mr. Chief Justice and may it please the Court. I appear on behalf of Mr. Ernest McIntyre, one of the respondents in this case, who previously was a member of the board, who at this time finds himself somewhat in an anomalous situation. The record, including his deposition which is in the transcript, in the Appendix shows that he, Mr. McIntyre was one of the members mentioned by Mr. Noyes, who favored integration of the pool or admission of Negroes to the pool and in fact first met Dr. Presses when he was coaching his youngster on a little league or softball, baseball team and it was he who inquired about application to the club. However, we find now that he is a defendant and nowhere below as the court ruled that he, since he was sued only as a Director should not have a part in these proceedings and should have been dismissed because the lower courts have not got into that. I will pass this point quickly because I want to get to the other points mentioned by Mr. Noyes, but I would say that Mr. McIntyre has no place in these proceedings and to keep an individual in a case like this with his demonstrated concern as a matter of social philosophy, if you will, would discourage any individual from serving in any community activity whatsoever. But, we come now to the point as to whether the verdict or judgments below should be affirmed and I think we come to the one point which has been the issue running through the briefs and that is whether Wheaton-Haven is not a place of public accommodation, but a private club or other establishment, not in fact open to the public. Now, I do not have the time, nor do I think the point necessitates taking time to demonstrate that in fact this swimming pool was not open to the public. It was created, formed, controlled, financed by members. The applications were voted on by members, either at a board meeting or at a membership of the whole. It was not a type of membership as in Little Hunting Park that followed the real estate. We had 70% within this three mile area, three mile radius, 30% would be outside of the area. The sale on a house did not ipso facto mean that the purchaser became a member of the pool. The seller of the house turned his membership in, yes he did have an option, the buyer. But the membership flowed back to the cooperation which had the obligation to buy it on 90% or 80% depending on whether the membership was full. Now, we come to one thing that I think is most important to fulfill the oral arguments and I do not wish to repeat the points that have been made in the briefs. Below, in the District Court, when this case started, Mr. Brown and I quote from the transcript, Page 18, “But of course, for the question of whether it is a private club, we will also concede for this for any purpose, would is also relevant to Section 2000 as well as Sections 1981 and 1982. We do not think it is a private club, but if it is a private club, then neither 1981, 1982 or 2000 would apply.” I think the same principles would be applicable. Now, we find in the reply brief of Mr. Brown at page 9, accordingly, Wheaton-Haven at least falls within the category of associations which even though private, which though private are not immune from judicial interference, to remedy injury resulting from arbitrary or discriminatory exclusion. So, we have a complete reversal of his position with no authority cited other than a medical society case and a labor union case which we submit is different. That is an economic unit, a professional unit such as a bar exam. It is not a place of pleasure, it is not a recreational activity, it is not a social club such as Wheaton-Haven. Thank you.
Warren E. Burger: You have a minute left if you need it Mr. Brown.
Allison W. Brown, Jr.: I would just like to say very briefly that the important thing here to consider and which has been stressed in the plaintiff’s briefs and has been stressed in the brief that was filed by the justice department in this case is that these community recreational facilities of the type that is involved here are not country clubs or fraternal organizations or sororities. They are organizations established as the records shows here to serve the community and I submit that if in this day of -- where there is a governmental policy attempting to foster a free and open housing for example, there can be no more significant and detrimental poignant badge of slavery than to have a situation where everyone in the neighborhood is eligible to use local community swimming pool except the Black family that happens to move in that neighborhood and that is exactly what has happened here.
Lewis F. Powell, Jr.: Mr. Brown, were there any facilities other than the swimming pool?
Allison W. Brown, Jr.: At the time, in the early days, at the time Wheaton-Haven was first organized, the record shows that there were no public pools and indeed the organizers had asked the county authorities about that to build the public pool in that area and they were told we cannot afford to, we are too busy building schools and consequently they went ahead and built this pool in the local community, that is on the record.
Lewis F. Powell, Jr.: Did this club had own any facilities there? Was there any club house?
Allison W. Brown, Jr.: Oh yes, there is a -- well, there is a single block, one level frame building which is where they keep their facilities I guess or keep their tools and the equipment and pumping equipment, and filters and so on and they have some vending machines there. I do not know what else is there, that is not reflected in the record, sir. But there is no club house to the social activity on the premises.
Warren E. Burger: Does the record show whether they served food or soft drinks?
Allison W. Brown, Jr.: Yes, the record shows that there was service of foods from these vending machines for people who were admitted of course to the premises and this is the whole basis or one basis for our assertion that they are covered by the 1964 Public Accommodations Act which if you would “hinges” on the service of food or the existence of other kinds of equipment which are passed on in interstate commerce and that is why we asserted jurisdiction under the 1964 Act. I would just like to say in closing that the association here, as the record will show made a commitment to the people who were originally solicited to join, it made a commitment to the public authorities in Montgomery County that it would provide a public community service facility and we submit that now those same -- the people who are in charge of this facility are attempting to convert it from a community facility into a haven for whites.
Warren E. Burger: Mr. Brown, is that in the stipulation, the representations made to the board, the county board?
Allison W. Brown, Jr.: That is Sir, in a decision of the Montgomery County Commission on Human Relations –
Warren E. Burger: That is in the record.
Allison W. Brown, Jr.: That's right, which is in the record was submitted in the Court of Appeals and the Court of Appeals in fact received it and considered it. So, there are certain findings which were made by that Human Relations Commission which are included in the record, were in the record in the Court of Appeals and a number of those finding as we point out in our reply brief, were in fact stipulated -- not stipulated to, but they were brought out in the course of discovery in interrogatories and admissions. So, there really is no -- they are in the record in that way, if not through the Human Relations Commission’s decision.
Warren E. Burger: Thank you gentlemen. The case is submitted.


William H. Rehnquist: We'll hear argument now in number 91-1188, James Rowland v. The California Men's Colony. Mr. Ching.
James Ching: Mr. Chief Justice, and may it please the Court: Section 1915(a) permits persons to proceed in forma pauperis upon the filing of a proper affidavit of indigency. The issue today is whether associations or corporations may also apply and whether, therefore, they are persons under the language of the statute. The relevant events concerning this statute are few and can be briefly described. Prior to 1959, the in forma pauperis statute was limited to citizens, and prior to 1959, the case law is perfectly unequivocal. Those citizens were only natural persons. They were not corporations, and a fortiori, they were also not associations.
Sandra Day O'Connor: Well, Mr. Ching, weren't corporations considered to be citizens at least for purposes of Federal court jurisdiction?
James Ching: The... corporations were considered citizens for the purpose of diversity jurisdiction. They are not entitled to powers of immunity under the Constitution. Consequently, there was some discretion in... according them various privileges such as the in forma pauperis. The Second Circuit in two cases held that they were not to be afforded the benefits of the in forma pauperis statute. Therefore, up to 1959, the application of the plaintiff in the court below would have been summarily rejected.
Anthony M. Kennedy: Well, it would have been rejected in the Second Circuit.
James Ching: It would have been rejected certainly in the Second Circuit with no--
Anthony M. Kennedy: How do we know whether it would have been rejected in the Ninth Circuit, for example?
James Ching: --Well, I would guess that the period of time between 1938 and 1959, in which no single case arose, indicated that there was some unanimity on the point. I have no other thought about the nature and number of cases involved. But in 1959, Congress, with the explicit, singular, and unequivocal intention of according the benefit of in forma pauperis to resident aliens and resident aliens alone substituted for the word, citizen, in the in forma pauperis statute the term, person. Then for a period from '59 to '69, utterly no litigation at all on the point. What this would indicate to me, in sum, is number one, the statute, whether referring to citizen or to person, never referred to artificial persons. It only referred to natural persons. Secondly, in the amendment in 1959, the language is we would extend the same privilege as is now afforded citizens to resident aliens.
Antonin Scalia: That's the language of what?
James Ching: That is the language of the report, the Senate report, in the statutory history.
Antonin Scalia: What about the House report? Did that say the same thing?
James Ching: I do not... I only had the Congressional News report. I do not know. However, drawn from this examination of the statutory reports, there are two principles: first, that the intent of the legislation was only to include another category of natural persons, residential aliens; and principle number two, that Congress has been extremely parsimonious in extending the benefit of IFP to any other groups. Well, this brief summary, of course, compromises the core of the--
John Paul Stevens: What did you call the principle that Congress only intended to--
James Ching: --To parsimoniously extend the benefits of in forma pauperis.
John Paul Stevens: --That's a principle or that's just an observation I suppose.
James Ching: I guess it's an observation. It's a generalization which I think is fairly drawn from the statutory history.
John Paul Stevens: Well, has the Congress rejected from time to time suggestions to expand the in forma pauperis statute?
James Ching: I do not know, Your Honor.
John Paul Stevens: Well, then I don't think you have any evidence for your supposition.
James Ching: All right. Well, in any case, the single instance in which they have expanded it with an enactment has been this 1959 amendment. The core of the minority position is... takes note of the fact that in 1948 the section 1 of title 1 was amended to create persons... a definition of persons that included corporations and associations. This would seem in light of the lack of any reference in section 1 to 1915 to be an irrelevant definition. It is even more irrelevant in light of the qualification that is explicit in section 1, that unless the context is consistent with the definition of persons, it is not to be used.
William H. Rehnquist: Well, it says unless the context otherwise requires, doesn't it, in--
James Ching: Unless the context otherwise--
William H. Rehnquist: --Or unless the context indicates otherwise.
James Ching: --Indicates. Of course, the meaning of context is not spelled out, but surely context must at least include the events surrounding the amendment in 1959, as well as the cases from the--
John Paul Stevens: So, you say context means more than the words of the statute itself. Context means the environment for the milieu in which the statute was adopted?
James Ching: --Certainly. Yes, that is my point, Your Honor.
Speaker: And the legislative history.
James Ching: Certainly, Your Honor.
John Paul Stevens: Section 1 then requires us to look at legislative history in every case to be sure it doesn't otherwise require.
James Ching: I would think so, Your Honor.
John Paul Stevens: A statutory directive.
James Ching: And since, in fact, we are attempting to implement the intent of Congress, then certainly we must understand what they mean if they use the word, person.
Antonin Scalia: What does context not include?
James Ching: I would not... I would think that the use of such a general term would not exclude much.
Antonin Scalia: Anything? Anything at all? I mean, I don't know why they just didn't say then unless there is some reason to think otherwise--
James Ching: And certainly--
Antonin Scalia: --the word, person, means, you know, but they didn't say that. They said unless the context indicates otherwise.
James Ching: --And there is nothing in section 1 to indicate what context means.
Antonin Scalia: Well, I think the word, context, comes from the word, text. Context. It means the surrounding text.
James Ching: Yes, and, con, would indicate with or adjoining to, and so--
Antonin Scalia: There's textual, there's contextual, there's extratextual. I think context means context. The passage in which the word is used, the surrounding statutory language. Don't you think that's what it means?
James Ching: --If that were so, that would indicate a restriction to only the statute which purported to define person in a separate and distinct manner. The cases, the FTC case and so on, dealing with the use of person doesn't seem to indicate such a narrow restriction.
Anthony M. Kennedy: Well, really the first definition in the dictionary is that it is a connection of words that... excuse me. The parts of a discourse that surround a word or passage and can throw light on its meaning. So, under that definition... it's the first definition... it would indicate that we look just to the statute.
James Ching: Well, anything that would indicate its meaning. Yes, I would think that you would look to the text first. There's no doubt about that.
Anthony M. Kennedy: But now, I said gist of the statute. That's a plausible interpretation of context, is it not?
James Ching: Yes, it certainly is.
David H. Souter: If we don't go beyond the text, do you lose?
James Ching: No. I do not believe that I lose if we are permitted to examine statutory materials related to--
David H. Souter: What's your best textual argument?
James Ching: --My best textual argument is that which I led with; that is, there has been a consistent restriction to natural persons both in case law and in the bill.
David H. Souter: Well, aren't you getting beyond the text of the statute when you say that? I mean, that's your parsimony argument, and you have to go to... I guess you have to look at a lot of congressional history beyond this statute. If you just look at the text, as Justice Scalia suggested, is there anything in the text that supports you?
James Ching: Well, the... by inference, the... I'm hard put to give you an answer on that.
Speaker: What about the requirement for an affidavit?
James Ching: The requirement for an affidavit is, of course, tied up with the complications of a corporate identity.
Antonin Scalia: It's not normal to talk about a corporation making an affidavit, is it? It says that you can't get IFP status unless you make... unless the person makes an affidavit that he is unable to pay such costs.
James Ching: Well--
Antonin Scalia: Such affidavit shall state the nature of the action, blah, blah, blah, and affiant's belief that he's entitled to redress it. I mean, I guess you could say that the corporation can make an affidavit through one of it's officers, but--
James Ching: --It could--
Antonin Scalia: --it's sort of a stilted use there, isn't it?
James Ching: --Well, it could not make it directly as implied by the plain meaning of the statute, and I would think that tied up with that is the inability to determine what the corporate assets are for the purposes of the litigation at hand. So--
Byron R. White: I suppose without the definition of person, the general definition of person, if that weren't in the statutes, I suppose you would win.
James Ching: --Yes, unequivocally.
Byron R. White: Because you don't usually call a... in common parlance, you wouldn't call a corporation a person.
James Ching: No, I would not think so.
Byron R. White: I suppose the word, poverty, in the statute also helps you. You don't usually think of a corporation as making an affidavit of poverty--
James Ching: Well, I--
Byron R. White: --financial... or do you?
James Ching: --I would not. I hate this, but I really do believe that a bankrupt corporation could make an affidavit of poverty through its trustee.
Byron R. White: We usually refer to impoverished corporations? We refer to corporations with financial hardship, corporations that are insolvent.
James Ching: Yes. I mean, there are many other technical terms that would more accurately describe a corporation without funds to pursue litigation.
Byron R. White: So, you don't pin much on the term, poverty, in the statute.
James Ching: I do not think it is as significant as the other point Justice Scalia made.
Antonin Scalia: I suppose part of the context is also the fact that this statute is providing for treatment as an indigent and providing public funds to be used for purposes that otherwise people are required to pay for. That's the part of the context, right? That... that's how the word is used in that context.
James Ching: Yes. Yes, at least that range and intent of the legislature was--
Antonin Scalia: And public charity is not usually accorded to corporations.
James Ching: --The corporations and associations are not of the first concern in terms of public welfare.
Byron R. White: Do you think that a bankrupt corporation that is bankrupt because it can't possibly pay its debt, its assets are much less than its liabilities... do you think that would automatically mean that it could be... it could file an affidavit that is... that it is entitled to be treated as a pauper?
James Ching: There is no reason to think that the bankruptcy... any of the prevailing tests for determining it bankrupt would automatically be imported into the in forma pauperis statute.
Byron R. White: Well, a corporation might have... could be taking... could be put in involuntary bankruptcy or take voluntary bankruptcy even though it has an income of maybe 100,000 dollars a year.
James Ching: Certainly, and the practical--
Byron R. White: And yet, I don't... I doubt if it would be granted in forma pauperis status, would you?
James Ching: --I hesitate. I hesitate to answer for the Ninth Circuit. However, in all seriousness, I do believe income flow is one of the key provisions for determining in forma pauperis status.
William H. Rehnquist: Well, there's a difference also. When an individual says that that person is unable to pay such costs, you're talking about a person perhaps supporting themselves, getting food on the table, and that sort of thing. When a corporation makes an affidavit that it's unable to pay the costs, what factors does it take into consideration?
James Ching: It is simply stating that it is unable to engage in the business for which it was created, and therefore, it would seem to me a lesser claim than that of bread on the table for an individual. And surely, the in forma pauperis statute was more directed to the individual in dire straits than a corporation in dire straits.
Sandra Day O'Connor: Well, now, Mr. Ching, in this instance, if we have an association of prisoners who by... I guess you concede they individually didn't have any money.
James Ching: I... the... one of the major problems with the case is the lack of development of facts upon discovery in this instance. We do know of instances in which inmates have considerable money.
Speaker: Well--
James Ching: So, I would not concede that as a theoretical--
Sandra Day O'Connor: --All right. Let me ask you this. Could the action have been brought as a class action with an affidavit of indigency by the--
James Ching: --Individual plaintiffs.
Speaker: --individual plaintiffs?
James Ching: I would think so, Your Honor. As a matter of fact, the complaint itself speaks of certification as a... of a class action. I do not--
Sandra Day O'Connor: So, it wouldn't have been impossible for this group to have filed on an indigent basis, in effect, through the mechanism of a class action.
James Ching: --Well, certainly, Your Honor, I think that they could have pursued a class action. I think that's what they should have done.
Anthony M. Kennedy: But, Counsel, isn't that... isn't there a danger there that just because the named plaintiff is indigent, could he bring a class action in forma pauperis if he has got a bunch of Rockefellers in his class?
James Ching: Well, Your Honor, the... I would think the IFP status would be granted for him, for the individual involved.
Anthony M. Kennedy: For the... but then he sues on behalf of the whole class.
James Ching: Yes.
Anthony M. Kennedy: Whereas if you made him sue in the association, as he does here, you'd be... you'd lump all the wealth of the entire group together and they'd have to be without funds as an entity.
James Ching: Well, that's one of the tests that has been... that have been proposed, that is, lumping or--
Anthony M. Kennedy: What I'm suggesting is that I think that you will have more in forma pauperis actions allowed if you allow class actions with just an indigent named plaintiff than you would if you looked at the assets of the entire class, which is what we would do in this case.
James Ching: --Well, I suppose that would be true, Your Honor. I mean, part of our concern is the administration of the courts and the volume of cases that arise. In the instance where there is a certified class action, we at least have the confidence to know that there is an interest that is common to all the parties involved, and in addition, it greatly simplifies our need to discover individual statuses and individual capacities.
Antonin Scalia: Can I bring a class action on behalf of all purchasers of AT&T stock, and just because I happen to be bankrupt, I can bring that class action on behalf of all AT&T stockholders in forma pauperis? Is that really the law?
James Ching: No, no. I had suggested--
Antonin Scalia: I thought that's what you said, that so long as the--
James Ching: --I had suggested that the individual would proceed and would, therefore, move for certification as a class action. At that point, if the class is going to be maintained, I believe some inquiry as to the individual capacities--
Antonin Scalia: --I see. I see.
James Ching: --of the members of the classes--
Speaker: I see.
James Ching: --would then proceed. There would be a subsequent xxx.
Antonin Scalia: Right. That makes sense.
James Ching: The issue of statutory interpretation--
John Paul Stevens: May I ask you another question?
James Ching: --Yes.
John Paul Stevens: You were... suggested that if there hadn't been this history, the word, person, would normally be read just to include individuals. But I... just glancing at the rules, Rule 19 talks about joinder of persons needed for adjudication and so forth. The whole language is all about persons. You don't think that excludes paupered persons.
James Ching: Well, in that regard, I'm also looking at the limitation upon the definition of citizen which precede it in the very same statute and which has been... which had been accepted for a considerable period of time. In light of that and the use... and the amendment, the explicit amendment, only to include resident aliens, I would feel that a common definition of person would be appropriate. If there are no further questions, I would reserve the remainder of my time for rebuttal.
William H. Rehnquist: Thank you, Mr. Ching. Mr. Weisselberg, we'll hear from you.
Charles D. Weisselberg: Thank you, Your Honor. Mr. Chief Justice, and may it please the Court: There are three main reasons why the Men's Advisory Council may sue in forma pauperis. First, under the plain and unambiguous statutory language, an association may proceed in forma pauperis. Second, if this Court does decide to look to the legislative history, nothing in the legislative history is contrary to the plain language of the statutes. And third, the statutory context, meaning the overall text, structure, and purpose of the in forma pauperis statute, does not require a restricted definition of the word, person. Turning first to the statutory scheme, 1 U.S.C., section 1--
Speaker: How do one and three differ?
Charles D. Weisselberg: --I'm sorry, Your Honor.
Byron R. White: How are one and three different of these reasons?
Charles D. Weisselberg: Well, one... Your Honor--
Byron R. White: The plain language is the plain language.
Charles D. Weisselberg: --Yes, Your Honor, but I think 1 U.S.C., section 1 does have the phrase which counsels the court to look to the context, and what I mean is that--
Byron R. White: Well, that's part of the plain language, isn't it?
Charles D. Weisselberg: --Yes, Your Honor. I would say--
Speaker: All right. Go ahead.
Charles D. Weisselberg: --one and three are in that way related. But 1 U.S.C., section 1 defines person to include associations. Section 1 was on the books when section 1915(a) was amended to include persons. Section 1 is Congress' own dictionary. It gives a mandatory definition of the word, person, because it is the definition that Congress itself has written. In Wilson v. Omaha Indian Tribe, this Court construed the phrase, white person. The Court held that Congress was aware of its own dictionary, and so when Congress reenacted the law using the phrase, white person. Congress was fully aware that the phrase would be construed to cover artificial entities, as well as individuals. Now, it makes sense--
Antonin Scalia: Because it was the same Congress, after all, that enacted that definitional section. Right?
Charles D. Weisselberg: --Yes, Your Honor.
Antonin Scalia: Was it really?
Charles D. Weisselberg: Well--
Antonin Scalia: How many years elapsed between the people that voted for that definitional section and the people that voted for 1915, as amended?
Charles D. Weisselberg: --Well, Your Honor, the... section 1 was amended in I believe 1948. Section 1915 was amended in 1959. But I would point out that 1 year before in 1958, this Court decided the case of United States v. A&P Trucking, and in that case, this Court was interpreting a criminal statute that used the phrase, whoever. Whoever, is defined, along with the word, person, in 1 U.S.C., section 1. This Court construed the phrase, whoever, to include partnerships because partnerships were included in the section 1 definition. So, just one year before section 1915 was amended, this Court decided a case applying Section 1 to construe a Federal statute. And it makes sense for Congress to define standard terms in section 1. That saves Congress from redefining those terms every time a new bill is passed. But Congress can only rely upon the definitions in section 1 if this Court is willing to make those definitions mandatory. The petitioners' claim here is that Congress was silent regarding whether an association may proceed in forma pauperis, but I would suggest the Congress spoke loud and clear in the statute. In amending section 1915(a), Congress deliberately used the word, person, and Congress chose that word knowing that the word, person, has a specific standard statutory meaning. The petitioners want that phrase, person, in section 1915 to be read as natural persons, but if Congress had wanted only natural persons to proceed in forma pauperis, it would have said so in the statute. The statute would have said that natural persons can proceed in forma pauperis or that individuals can proceed in forma pauperis or that citizens and aliens can proceed in forma pauperis, or Congress would have taken the time to craft a specific definition of the word, person, just as Congress has done in a variety of other statutory schemes. But Congress didn't do so. It used the word, person, which has a standard statutory definition. Now, the petitioners rely quite a lot on the legislative history to the amendment to section 1915(a). In response to an earlier question, I'd point out that the Senate report, which is republished in the U.S. Code and Congressional News, I think also reprints the House report. It contains it in great detail so that the legislative reports from the two chambers are reproduced there. And those reports do not say that person means only natural persons. There's a paragraph that's two sentences long that's entitled Purpose, and all that it says is that the purpose of the amendment is to change the word, citizen, to the word, persons.
Sandra Day O'Connor: Well, Mr. Weisselberg, I suppose that under the old original statute that dealt with citizens back in 1892, that that didn't include associations, did it?
Charles D. Weisselberg: Well, there was certainly case law that allowed artificial entities of... namely, corporations to--
Sandra Day O'Connor: Maybe a corporation, but I didn't... didn't the old dictionary law in force back in 1892 make clear that it didn't apply to associations?
Charles D. Weisselberg: --I don't believe that the version that was in effect at that time included the word, association.
Sandra Day O'Connor: So, we take it on the assumption that citizen then at least didn't include an association, such as you're representing. So, when Congress changed citizen to include aliens, presumably it didn't enlarge it.
Charles D. Weisselberg: Well, it... several responses to that, Your Honor. First, again, when Congress changed the statute and chose the word, person, which was then defined to include a category of people other than merely corporations and aliens, it specifically includes associations. I also--
Sandra Day O'Connor: Well, yes, but it also tells us to look at the context.
Charles D. Weisselberg: --Yes, Your Honor.
Sandra Day O'Connor: And if the context tells us that it didn't include associations, I guess that--
Charles D. Weisselberg: Well, Your Honor, I suppose I'd suggest that the context here does not exclude associations and does not counsel otherwise. Perhaps I ought to address that. I'd suggest that the Court consider context in the same way that this Court has construed the word, context, and looked at context in interpreting a number of statutory schemes. There are a few cases that come to mind. There is Department of Energy v. Ohio, and in that case, this Court interpreted the phrase, sanction, or the word, sanction, and the Court said that sometimes looking at a phrase in context gives a meaning that a phrase lacks in isolation. And there the Court compared the use of the word, sanction, in several different subsections of the particular enactment. So, I'd suggest that was an example of a court looking at the overall text of the statute to decide context. And here I'd suggest that context, thus, refers to the overall text of the statute and not to a legislative history. And when one looks at the overall text and purpose of the in forma pauperis statute, there is nothing that would suggest in my mind that the statute ought to be limited to natural persons only.
William H. Rehnquist: --I don't know that that is the strongest argument I've ever heard, that if Congress were sitting down and thinking about this right now, and you said, well, do you want corporations, as well as natural persons, to be able to proceed IFP, you say yes, Congress would have said yes?
Charles D. Weisselberg: Well, there are plenty of reasons why the Congress would have said yes and why the Congress deliberately used the word, person, in amending section 1915. I think this Court has recognized in a number of cases that effective advocacy may be brought about through associations and through group litigation.
William H. Rehnquist: Well, but we're talking about corporations.
Charles D. Weisselberg: Well, Your Honor, there are lots of... corporations are, of course, frequent litigants in the Federal courts, and it may well have been Congress' intent to allow those corporations to continue to litigate even if they didn't have the funds to support the litigation.
William H. Rehnquist: What... supposing the secretary of the corporation or the president of the corporation is going to make an in forma pauperis affidavit, what does he take into consideration that will... what sort of corporate picture does he have to have before he can say that the corporation is unable to pay the costs?
Charles D. Weisselberg: Well, I suppose initially, at the very least, the officer would Get out the assets and the liabilities of the corporation and list the income of the corporation. I suppose that at a minimum though I'd point out that, of course, the statute--
William H. Rehnquist: But he has to affirm. He not only has to set out statistics, but he has to swear that the corporation is unable to meet the costs. Isn't that--
Charles D. Weisselberg: --Yes, Your Honor.
William H. Rehnquist: --What decision making process does he go through?
Charles D. Weisselberg: I suppose he would look at the assets again and the liabilities of the corporation, see if there is a way that the corporation would have the funds to support the filing fee, and figure out the costs in that respect, Your Honor. He'd have to go and determine what the filing fee would be and what the costs of the civil litigation would amount to. But I would... I'd like to point out that I don't think that process is that much more difficult than it is for an individual. The in forma pauperis statute doesn't give the courts the criteria that are used to determine whether an individual may proceed in forma pauperis.
William H. Rehnquist: No.
Charles D. Weisselberg: That's something that--
William H. Rehnquist: But with an individual, you know, a person presumably is thinking about food, shelter, some clothing, any liquid... you know, any cash at all, and it just doesn't seem to me that a corporation ordinarily thinks in those terms.
Charles D. Weisselberg: --Well, and that might be one reason why this is unlikely to be used by many corporations. Perhaps it would help address the policy aspects of it by describing the Men's Advisory Council itself in a bit more detail. There are 10 dormitories in Unit II of the California Men's Colony.
Antonin Scalia: xxx. What difference does it make? I mean, the argument... I don't care what the men's dormitory... today it's the men's dormitory council. Tomorrow it's going to be some association of millionaires--
Charles D. Weisselberg: Well--
Antonin Scalia: --who simply haven't put very much money into this association or corporation. So, you have a very impoverished corporation composed of members who are very wealthy, and you would have to argue, well, a person is a person. This is an association. The association as an association is poor.
Charles D. Weisselberg: --Justice Scalia, I disagree, and perhaps I can explain why. The reason why I wanted to describe the Men's Advisory Council a little... in a little more detail is that I think it's an excellent example of a situation in which an association is bereft of funds and actually in this case bereft by action of one of the defendants, the warden. But going back to the... your example, Justice Scalia, that of a corporation perhaps deliberately underfunded, the in forma pauperis statute gives the Federal courts and gives the district courts tremendous discretion in determining whether or not an organization or a corporation is indigent. And if a corporation is underfunded, that's a usual instance in which a court might look beyond the shell, that is, the structure of the corporation, to the assets of the individuals.
Antonin Scalia: I don't know what you mean by underfunded. People bought stock in the corporation. The business didn't do very well. Since it was a losing business, they declined to contribute any more money, but in fact, all of the owners of the stock are millionaires. Is that underfunded? It's just a poor corporation. There is no blame there. It just so happens that it's owned by millionaires.
Charles D. Weisselberg: Well, Your Honor, I suppose I'd simply suggest that it's a very rare instance when a corporation, even if it is bankrupt or going bankrupt, can't spare the 120 dollar filing fee for an action in Federal court or funds for witness fees.
Antonin Scalia: What about lawyers? This section 1915 also requires that the court may request an attorney to represent any such person unable to employ counsel. Now, counsel are very expensive. You... do you think that in this context we should interpret that to mean corporations and associations, that the courts are going to appoint counsel to represent corporations?
Charles D. Weisselberg: Well, the courts are free in their discretion I believe under that section to request counsel to represent an indigent association, just as the Ninth Circuit requested us to represent this indigent association. Of course, that's on a pro bono basis, as I think this Court recognized also in the Mallard decision.
Sandra Day O'Connor: Mr. Weisselberg, could this action have been brought as a class action and affidavits of indigency supplied by named plaintiffs?
Charles D. Weisselberg: I suppose that it's possible that an inmate may have filed this action on behalf of a class of other indigent inmates at the institution. Nevertheless, this association is one that was formed at the request of the warden with the specific purpose of representing the inmates to give them representation and a voice in the way the prison affairs are run. This is the organization that exhausted administrative remedies. This is an organization consisting of elected representatives from different dormitories. So, this is a... an organization very well suited to bring this action. And I think in the UAW v. Brock case, this Court recognized that it may be better in many circumstances for an organization composed of individuals to bring an action than it would be to proceed through a class action under Rule 23.
William H. Rehnquist: Is there any way of construing 1915 to say that associations are included within the word, person, but corporations aren't?
Charles D. Weisselberg: Your Honor, I think using 1 U.S.C., section 1, all of the entities that are listed in that section would come within the meaning of the word, person.
William H. Rehnquist: So, it's either corporations and associations, or it's neither.
Charles D. Weisselberg: Well, I suppose initially I would look to 1 U.S.C., section 1 and consider all of the entities listed there to be persons if I suppose the Court were to think that for some reason the context of the statute indicates that only several of them--
Byron R. White: xxx what an association is.
Charles D. Weisselberg: --Yes, Your Honor, generally a collection of individuals.
Byron R. White: You mean just anybody can say... a bunch of neighbors get together and they just say we are an association?
Charles D. Weisselberg: Well, Your Honor, associations are formed in many ways I suppose, but the question here isn't whether associations per se can litigate in Federal court because they can. The only question here is whether indigent associations may proceed under the in forma pauperis statute, and to the extent there are questions of standing--
Speaker: Well, but isn't--
Charles D. Weisselberg: --and such, they--
Byron R. White: --But you have to recognize that... even you have to recognize what an association is--
Charles D. Weisselberg: --Yes, Your Honor.
Byron R. White: --to get in forma pauperis status. And it would, of course, mean that people, for instance, landowners wanting to fight a zoning change, could form an association and not fund it and claim indigent status and get a lawyer appointed.
Charles D. Weisselberg: Well, in that... several responses to that, Your Honor. First, I suppose many different groups can form an association, but again if that sort of an association sought to proceed in forma pauperis, the district court would be free to look at the assets of the individual members of the association. But--
William H. Rehnquist: Why is that?
Charles D. Weisselberg: --They'd be free to do that.
William H. Rehnquist: Why would it be free to look at the assets of the individual members?
Charles D. Weisselberg: Well, Your Honor, the courts have said simply that there's a lot of discretion, enormous discretion, in the judges in terms of how--
William H. Rehnquist: So, one judge could look at the assets of the individual members and another judge would not, and either one would be correct?
Charles D. Weisselberg: --Well, Your Honor, I think that the discretion will have to be guided by some future decisions as this area of law develops. I mean, again--
William H. Rehnquist: But what is the rule in your view that ought to be enunciated? When an association files for IFP--
Charles D. Weisselberg: --Yes.
William H. Rehnquist: --may a court consider the assets of the individual members or only those of the association?
Charles D. Weisselberg: Well, I think initially the court ought to simply look at the affidavit that is submitted on behalf of the association. In the Adkins case, the Supreme Court case--
William H. Rehnquist: I don't think you've answered my question.
Charles D. Weisselberg: --Well, I think initially the court ought to look to the affidavit which describes the assets of the association, but the court would want to know, in essence, the purpose of the association, whether it was formed in some way--
William H. Rehnquist: Well, now--
Charles D. Weisselberg: --perhaps to avoid paying fees.
William H. Rehnquist: --why don't you give me an answer to the question and then explain? Does a court look to the assets only of the association, or does it look to the assets of the individual members?
Charles D. Weisselberg: I believe the court should look to the assets of the association only unless the materials give the court a reason simply to look further, say, a suspicion that the organization was not adequately funded by the members, something like that, Your Honor, some indication from the papers.
Byron R. White: Suppose it's plain the association hasn't got any money, but it's also just as plain that the members of it do.
Charles D. Weisselberg: I'd see no reason why the court couldn't look to the members of the association for the funds.
Byron R. White: So, you only look to the association exclusively if you find that it has so much money of its own that it doesn't deserve in forma pauperis.
Charles D. Weisselberg: Well, Your Honor--
Byron R. White: If it doesn't have any money, then you look to... always look to the members. Is that it?
Charles D. Weisselberg: --Your Honor, I would say the court should look to the affidavit first which would normally set out the assets of the organization, and it would probably, I would assume in this circumstance, give an indication of the purpose from the organization and from that, Your Honor, the court would have some understanding of the purposes of the organization, whether it was--
Byron R. White: Well, what about a partnership that has filed its articles of partnership according to law?
Charles D. Weisselberg: --Ordinarily, Your Honor, in a partnership, one looks to the assets of the members of the partnership. The court would be free to do so.
Byron R. White: Well, a fortiori, I suppose you ought to look to the... because a partnership is more of a... is treated more as an entity in more circumstances than an association I suppose. And yet, you say look to the assets of the partners.
Charles D. Weisselberg: Well, you know, again, perhaps this is a good instance in which a court wouldn't look past the assets of the organization. I mean, in this case, the organization consists of elected members from the prison who were formed by... at the request of the warden with a purpose of addressing administrative problems within the prison itself, and under those circumstances, it would be difficult to say that individual elected representatives, people who are serving because the warden wanted the inmates to have a voice, should be forced on their own to pay the assets even if they were able to gather the funds. I mean, in this case the warden prohibited the organization from collecting funds. The record clearly states that the organization couldn't have an account, couldn't collect funds through a fund raiser of any type. So, you have an organization which was formed to represent the inmates and was made indigent by one of the defendants in the action itself. So, I would think this is a good example of a case in which a court would look at the assets of the organization, the bona fide purpose of the organization, and not look further than that.
Antonin Scalia: I assume you think the same about corporations as you do about partnerships and associations, that you look to the stockholders?
Charles D. Weisselberg: Well, Your Honor, I would think that the courts are very free to borrow from general principles of corporate law when one pierces the corporate veil.
Antonin Scalia: No, but that would mean you normally wouldn't look to the stockholders. Unless there's some special malice or fraud or something involved, you don't look to the stockholders. So, it's enough that the corporation is impoverished. That's--
Charles D. Weisselberg: I would say that in general, yes. But, Your Honor, I don't want to--
Antonin Scalia: --Suppose I form a corporation to do a public interest litigating functions, public interest litigation firm, only its causes, the causes it wants to litigate, are very bad causes, so it can't raise any money. It raises very little money. No problem, right, because it will be able to proceed in forma pauperis and even to have the court appoint counsel.
Charles D. Weisselberg: --Well, I think the court--
Speaker: 0 xxx.
Charles D. Weisselberg: --I think the court would want to look and see if the person who formed the organization did so having funds on his or her own and simply underfunded the organization.
Antonin Scalia: Well, now, but there's no fraud involved here. I thought you said normally you don't look past the corporation unless the usual reasons that you pierce the corporate veil. There's nothing underhanded about setting up a corporation with very small capital. There's nothing evil about that. That's perfectly valid. There's no fraud.
Charles D. Weisselberg: Well, Your Honor, I mean, under those circumstances, I assume the court would look to the assets of the organization.
Antonin Scalia: So, then whenever you have a poor corporation, you do look behind... you pierce the corporate veil.
Charles D. Weisselberg: Well, no. I'm sorry, Your Honor. I thought I said that the court would look initially to the assets of the corporation, and if there was a reason under generally accepted principles of corporate law to look past the assets of that organization, the court would have the discretion to do so.
Antonin Scalia: Well, we're just going around again. As I say, under normal principles of corporate law, you don't pierce the corporate veil unless there's some fraud.
Charles D. Weisselberg: That's correct, Your Honor. But frankly, I know the court has... and we've taken an awful lot of time discussing what may appear to be this practical problem, but in general I am not at all certain that the courts will have difficulty assessing when organizations can go in forma pauperis. And I don't really that this is something which will come up much. I mean, frankly, the Southern District of New York decided the Harlem River case 15 years ago. In that case, the district court held that associations and corporations are persons within the meaning of the in forma pauperis statute. I think this Court can take note of the fact that the Southern District of New York is a district which has quite a number of corporations and associations, and yet, since the Harlem River case, no case has reached the Second Circuit on this issue. There's no other reported case in the Southern District of New York. I don't know that this is something which is going to come up often. Also, I would point out that if organizations are bringing lawsuits on behalf of individuals, it may well be that there would be a reduction of litigation in the Federal court because an association suit may replace suits of many individuals. So, first, I don't know that this is something which will cause a problem for the courts, and I don't know that it will come up very often at all. I'd also like to point out the in forma pauperis statute, section 1915, doesn't even give guidelines as to... assess the indigency of individuals, and yet, the courts have managed to fashion their own rules to determine when individuals can proceed in forma pauperis. And the courts have developed that jurisprudence and have not had difficulty in developing it. And I'd suggest that the courts, if associations or corporations do occasionally sue under this in forma pauperis statute in the future, will have no difficulty developing that jurisprudence either. I know that the petitioners have suggested that legislative history means context and that the Court ought to look to legislative history. I'd suggest that context means overall text and purpose of a statute, and that if this Court looks to the legislative history in this case, it does it for the same reasons that the Court ordinarily looks to legislative history, and that is if the statute is deemed ambiguous in any respect or if there is an argument that interpreting the statute literally would frustrate the intent of the legislators. I think that the language of the statute is clear. The statute is not ambiguous. Section 1915 says that persons may proceed in forma pauperis, and 1 U.S.C., section 1 says that persons include associations. So, it's not an ambiguous statute and one should not look to the legislative history under that... for that reason. If there is a claim that interpreting the statute literally would frustrate the intent of the legislators, I think this Court in Union Bank v. Wolas said that a party making that argument has an exceptionally heavy burden to meet.
Byron R. White: What would you say if the committee report says we know we've used the word, person, in this statute, but we have no intention that that word, person, means what the general definition of person is--
Charles D. Weisselberg: I think that--
Byron R. White: --in another statute?
Charles D. Weisselberg: --I think that would be a much harder case for me, Your Honor, and that might be a circumstance in which a... the legislative history would indicate otherwise. But we don't have that at all here, Your Honor.
Byron R. White: You think the legislative history has to say that in order to make a difference.
Charles D. Weisselberg: Yes, Your Honor. I think it does, and it doesn't say that at all here. The legislative history contains some references to aliens, and it may well be that some legislators were motivated to amend the in forma pauperis statute to allow aliens to proceed in forma pauperis.
Antonin Scalia: You acknowledge, though, that legislative history is relevant within... it is part of the context.
Charles D. Weisselberg: No, Your Honor, I don't think that it comes--
Antonin Scalia: Well, you just did. You just said that.
Charles D. Weisselberg: --No. What... I'm sorry, Your Honor. What I meant to say is the Court considers legislative history, in essence, for two reasons: one if the statute is ambiguous, and this statute is not ambiguous; second, if a party makes a claim that interpreting the statute literally is absurd or would lead to absurd consequences, or that it was contrary to the--
Speaker: 0 xxx.
Charles D. Weisselberg: --thwart the intent of the legislators. That's a circumstance in which this Court has in the past--
Byron R. White: Well, you said it would be a much harder case if the committee report said we don't intend to apply the general definition of person--
Charles D. Weisselberg: --Yes, Your Honor.
Byron R. White: --and we don't intend to include associations and corporations. And you said that would make a difference.
Charles D. Weisselberg: I said that would make it a much harder case, Your Honor, because--
Antonin Scalia: If that's xxx, you should say no, it wouldn't make any difference because it's still not context. No matter how clear it is, it's not context. xxx context--
Charles D. Weisselberg: --Your Honor, what I'm saying... what I mean to say is that I don't think that context includes legislative history. I think if this Court looks to legislative history, it does for the other reasons--
John Paul Stevens: --Well, then there wouldn't be any harder case than my example. Well, sure it would be a harder case because you have to overcome the argument that your reading is absurd, and that's what you saying. That's what you'd look at to see if was absurd, and you'd say no--
Charles D. Weisselberg: --That's right.
John Paul Stevens: --that it's harder to that extent. You got one more hurdle to cover.
Charles D. Weisselberg: That's right, Your Honor.
John Paul Stevens: There's no inconsistency in your position. You're making alternative arguments.
Charles D. Weisselberg: Well, all I wanted to point out is that I think that a party that's making the argument that interpreting a statute literally has an exceptionally heavy burden to meet and it is so heavy that that argument failed in Griffin. It failed in Mansell v. Mansell. It failed in Ardestani, and it must fail here. Well, if there are no further questions, I--
William H. Rehnquist: Thank you, Mr. Weisselberg. Mr. Ching, you have 12 minutes remaining.
James Ching: Yes, Your Honor. I have two brief, very brief, points. The first is this counsel point which crops up again. If, in fact, we have to take corporations and associations simultaneously because of the definition of section 1, then it means the 19... under provisions of 1915, each of those will have to have appointed counsel.
John Paul Stevens: No, it doesn't at all. The statute doesn't say he must appoint counsel or even he may appoint counsel.
James Ching: Certainly--
John Paul Stevens: The section says he may request an attorney--
James Ching: --Exactly right.
John Paul Stevens: --to represent any such person, but the lawyer can say no.
James Ching: And my point is that corporations never appear except through counsel, and a fortiori, neither can associations. There is internally--
Speaker: Well--
James Ching: --an inconsistent provision--
John Paul Stevens: --Neither do individuals generally appear without counsel.
James Ching: --Well, in forma pauperis individuals appear without counsel all the time, my point being that if the general rule regarding representation of corporations is followed through, the statute does not adequately address the special needs of corporations and associations to appear--
Byron R. White: Well, that's just a different rule. That doesn't mean that they can't be... have in forma pauperis status. All it means is that you can have it, but in order to get into court, you got to have a lawyer.
James Ching: --Yes.
Byron R. White: Bring your lawyer. Tell your lawyer that you're broke and he should-- --Meet you at the courthouse.
James Ching: Meet you at the courthouse, yes.
Byron R. White: He should come with you. Well, he got a lawyer here without the help of the court, didn't he? Or was he appointed by the court? Your opponent.
James Ching: He was appointed by the court.
Speaker: By the court, oh.
James Ching: Pro bono. My point is that under the provisions of the statute--
John Paul Stevens: He's shaking his head. He shouldn't do that during your argument, but he-- [Laughter]
James Ching: --And so am I because I was appointed by the court without authorization other than that. But the only point I make is if the statute is worded in terms of discretionary appointment of statute... of counsel, that is inconsistent with the concept that associations or corporations could be in forma pauperis because they must appear through counsel.
John Paul Stevens: No, but many of these in forma cases, there are volunteer associations of lawyers, pro bono groups that do volunteer legal services without the judge intervening. They draft the complaint and so forth. And that could have happened here whether, in fact, it did or not.
James Ching: Well, it was a simple point well-refuted. I'm prepared to submit the matter.
William H. Rehnquist: Thank you, Mr. Ching. The case is submitted.
Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.