Warren E. Burger: Number 301, Pike against Church. You may proceed whenever you're ready Mr. Lee?
Rex E. Lee: Mr. Chief Justice and members of the Court. Presented for decision in this case is the constitutionality of certain aspects of Arizona's Fruit and Vegetable Standardization Act. Once again, we have a very important industry and a very important statute of an important agricultural state. I believe that the issues which are present in this case can best be appreciated against the background on a brief discussion of the nature and purpose of Arizona's Fruit and Vegetable Standardization Act and the history of Standardization Act in general. Mr. Justice Brandeis reminds us in Pacific States Box & Basket case which is cited in our brief that Standardization Act, that is acts which prescribe standards for certain types of containers of agricultural produced are among the earliest examples of the exercise of police power by the states. The case that Mr. Justice Brandeis' cites as authority for that proposition is Turner versus Maryland an 1883 unanimous decision by this Court. There is some language in Turner versus Maryland which is not cited in our brief, but which I believe definitely warrants the attention of the Court because it answers specifically one of the propositions or one of the contentions that's raised by the appellee in his brief. Citation of Turner versus Maryland is contained in our brief, it's 107 U.S. 38 and this particular quote appears at page 57. In that case, this Court ruled as follows: “the state may direct that a certain product while it remains in the bosom of the country and before it becomes an article of foreign commerce or commerce between the states, shall be encased, shall be encased in such a package as appears best fit it to secure the safety of the package and to identify its contents as the growth of the state.” So that as early as 1883, this Court in the unanimous decision required that it lay within the police powers of the state, to require that the produce of that state prior to the time that it leaves the state, be encased in a certain type of package, and that that package identify the produce as the product of the state. Involved in that particular case was a standard container known as the hogshead or Maryland tobacco, and that statute required that the hogshead identify the tobacco contained therein is Maryland tobacco. The Arizona Fruit and Vegetable Standardization Act rests upon consideration similar to those which are approved by this Court in Turner versus Maryland. The record in this case contains a discussion of the conditions which led up to the enactment of the Standardization Act, and they are as follows. Prior to 1929 when the Act was adopted, it was up to each individual shipper within the state to set his own standards, both for the quality of the produce that he desired to ship, and the type of container that he desired to ship it in if he shipped it in a container at all. Consequently, the standards adopted by some shippers were very high, and the standards adopted by other shippers were not so high. It is abundantly borne out by this record that it is of prime importance to the success of marketing of fruits and vegetables that the shipper maintained a good reputation for shipping quality of fruit. But the record also bears out, there's not always possible to maintain that reputation separate and apart from the reputation of the district or the state within which he produces and from which he ships his product, particularly where it's produced. Conversely stated if a state can acquire a good reputation for a certain type of produce, that reputation will inure to the benefit not only of the state as a whole, but also each individual grower and shipper within that state. And it is not difficult to find examples where a states have been successful in creating such reputation, such as Washington apples, Florida oranges, Arizona grapefruit and frankly we believe Arizona cantaloupes. This then was the problem for it which the Fruit and Vegetable Standardization Act was directed. It set minimum standards for a selected number of fruits and vegetables, now 37 within the State of Arizona and those standards have been met by all shippers where the Act so provided and it also provided that they have to meet minimum standards not only of quality, but also a pack, and that it had to be packed in standard containers. The provisions dealing with cantaloupes as they appear in the statute today are illustrative in this regard. As set forth in the statute and the statute is cited, the relevant provisions are cited at the outset of our brief, the cantaloupes must be mature, but not overripe. They have to be free from mold, decays, sponginess, welding, insect damage and a variety of quality defects, but perhaps the most interesting provisions of the statute from the standpoint of this case are those provisions which deal with the individual pack and the appearance of the cantaloupes within that pack. It's been stipulated by the parties that a prime purpose of the statute was to avoid deceptive packs or a deceptive arrangement, deceptive arrangement and deceptive pack are described similarly by the statute. They pertain to that situation wherein the higher quality fruit is placed toward the outside of the container with the off quality fruit in the center of the container of the lesser quality fruit in the center cover, so as to materially misrepresent the quality of the entire container. That particular provision of course can only be enforced if the container itself after it has been packed, has been inspected, and there are other provisions as to which this is also true.
Byron R. White: Well Mr. Lee, what's -- tell me, you cited some prior case, but what would you suppose the justification is for states saying you may not ship in bulk out of the state? You may not ship in bulk out of the state, are you getting it?
Rex E. Lee: Well, in the answer to that question Mr. Justice White lies the entire justification of the Fruit and Vegetable Standardization Act.
Byron R. White: I know, but what if the fellow you say that -- he says “Well look, I'm going to ship in bulk out of the state. It's just a few miles across the line and I'm going to pack them over there and say that their packed in California.”
Rex E. Lee: There are number of answers to that question. They are the following; in the first place, if they are packed in California, they will not be identified as Arizona produce. This --
Byron R. White: And so, you're not going to hurt if they are bad cantaloupes?
Rex E. Lee: Yes, we are. There are three principle cantaloupe producing states. They are Arizona, California and Texas. There is some value or at least it certainly lies within the state's prerogative to conclude that there is some value to be known as the number three cantaloupe producing state within the United States. If these cantaloupes are not identified as Arizona produce --
Byron R. White: They won't be counted in --
Rex E. Lee: Then they won't be counted, that is correct. Moreover, these particular cantaloupes, and this is in the record as a matter of --
Byron R. White: This has to be the sole basis for them for more preventing bulk shipments where they are not going to be identified upon being packed as Arizona cantaloupes?
Rex E. Lee: No sir, I submit that it is not, there are additional reasons. These particular cantaloupes, these particular cantaloupes are as a matter of stipulation, as a matter of stipulation in the record the highest quality of any cantaloupes that are produced within the State of Arizona and therefore, we feel that the state is entitled to have those cantaloupes identified as Arizona cantaloupes. This is the basic purpose of the statute.
Byron R. White: Well so, it's again, you want them identified as Arizona cantaloupes, and add it up and Arizona will get credit for these, they are bad, you don't want credit for them, do you?
Rex E. Lee: And pursuant to that, let me proceed with the example that you gave of cantaloupes which are shipped in bulk across the state line. They come from the field and they're put in to a trailer, everything goes into the trailer. The good fruit, the bad fruit, it's mixed all up --
Byron R. White: By the way, do you have a regulation that state says how far you may transport cantaloupes and picked up to the packing point?
Rex E. Lee: No sir.
Byron R. White: Do you know that -- how far they are normally transported when they're picked up in the field -- I suppose that you defined, but maybe they are carried 20 or 30 miles within the State of Arizona to a packing point?
Rex E. Lee: That is possible. I don't know --
Byron R. White: And at least as far as they're carried here across the state line.
Rex E. Lee: I would think that would be possible.
Byron R. White: Okay, go ahead.
Rex E. Lee: The point that I'm about to be make is that they can be carried a good deal farther. They go in and there has been no sorting, no sorting of quality fruit from the colors, no sorting of one color from another color, and this as is borne out by the record is also important. There is no sorting according to variety, everything goes into that trailer. They are inspected, but they are inspected only for the purpose of determining the presence of pickle worm, which is a quality defect of cantaloupes. They are given a Pickle Worm Certificate, indicating that they have been determined to be free of pickle worm, and that's certificate is given to the California inspector on the California side of the line. And from that point, provided that they meet the test, they go right on through the inspection station, presumably on their way to Blight to be packed. But Mr. Justice White, once those cantaloupes leave the State of Arizona, there is no way that we have of assuring ourselves that they will not go right on through Blight, right on to San Diego, Los Angeles, San Francisco or anywhere else, be sold in bulk lot to a chain store buyer and when asked where that these cantaloupes come from, the answer comes back Parker, Arizona.
Byron R. White: Well, you got the --
Thurgood Marshall: But what about the standards in California? They sought to protect their people, don't they?
Rex E. Lee: Well frankly --
Thurgood Marshall: Is there any difference between the fruits standards in California in those in Arizona?
Rex E. Lee: Yes Mr. Justice Marshall, there are and those are set forth, they're discussed --
Byron R. White: Which way did they operate?
Rex E. Lee: Well, --
Byron R. White: I mean are they higher or lower than that?
Rex E. Lee: We feel -- there are, -- you know, that --- though the differences in language of the statute would indicate that Arizona standards are more demanding than California standards. For example --
Thurgood Marshall: Well, what interest does Arizona have in protecting the people of California?
Rex E. Lee: None Mr. Justice Marshall. Our interest just as in the case --
Thurgood Marshall: Protecting the name of Arizona?
Rex E. Lee: That is correct, that is correct. Just as this Court said in Sligh versus Kirkwood, the State of Florida has a great interest in protecting reputation of its citrus fruits. The California statute says that both California and Arizona proscribe serious defects, and both California and Arizona says that it's a serious defect if it affects the edible portion of the cantaloupe. The California statute stops at that point. The Arizona statute goes on to say or if it affects the appearance, the California says nothing about it, or the shipping quality of the fruit and the parties have stipulated that these manners of appearance and shipping quality are factors which affect the reputation of the produce but are separate apart the --
Byron R. White: Do you -- of the California inspectors if they want to ship these cantaloupes back into Arizona for retail sale?
Rex E. Lee: Certificate, but what?
Byron R. White: Well I suppose you -- I suppose you have regulations against to check on the quality of imported cantaloupe?
Rex E. Lee: Yes. But Arizona is --
Byron R. White: You don't re-inspect them do you when they shipped back into Arizona?
Rex E. Lee: I'm sure that we wouldn't. But the point is --
Byron R. White: Make sure you would accept the certificate of the California inspector if the California law meets what you think is a reasonable standard?
Rex E. Lee: Yes. I know of no such certificate, but that's beside the point if there were one. The point is this, why would suppose that fully 90% of cantaloupes that are grown in the State of Arizona are not marketed in the State of Arizona? Arizona is cantaloupe producing state. It's consumption doesn't anywhere near match its production. What we're concerned about is the reputation and preserving the reputation that our produce has in other states where they are in fact consumed. Now, Mr. Abramson will tell you that they fully intent to pack it in Blight according to California standards. We feel that California standards are not exactly the same as Arizona's, and therefore bound and in any event, we feel that it follows inexorably from the proposition that Arizona has the right to enact the standardization law that it can enforce them through its own inspection officers and need not rely upon the application of California law through California officers. Let's assume that the standards were exactly the same today? We have no guarantee that those standards are going to be carried out. We have no guarantee that California will not change his law tomorrow. We have no guarantee that California inspection officers are going to do their job and indeed, there is some difference; you can read it in the statute. If a 5% difference will make our statute unconstitutional, would a 10% difference -- than validate it. At all points, the conclusion is simply inevitable that starting from the premise which we feel is justified as set forth by this Court in Turner versus Maryland, Sligh versus Kirkwood and the Pacific States case that we do have the right to prescribe the standard containers, and we have the right to enforce it through our own inspection officers. Now, the Bruce Church Co. has said we intend to pack these in California. They articulated some of the reasons that there's a problem with this. Even assuming that that is correct, if this appellee allowed to ship them across the state line in violation of the statute, we're going to have to let others and we have no control over how those will be sold or whether they will be packed in standard containers at all. The only way that we can assure that is to assure -- is to require that before the produce leaves the state, it is packed neatly in a new clean container, arranged orderly, uniform in size, uniform in color, uniform in variety. So that when the grocer opens that box, he knows that he can take the cantaloupes out of their box, put them on the shelf and they will make a nice, neat, attractive assortment, uniform in color, uniform in size, and up to quality that is guaranteed by the Arizona Standardization Act, and that is what is meant by standardization, and that's what we're trying to preserve.
Warren E. Burger: Does this record show whether when these cantaloupes are marketed in California or any other state, they are identified after the package is broken as Arizona cantaloupe?
Rex E. Lee: Mr. Chief Justice Burger --
Warren E. Burger: -- markets and sold --
Rex E. Lee: -- this record does not show anything on that, and I would think it would be a matter of individual choice with the grocer. He either might or he might not, but we think -- you see, he is our customer, and so are the merchants -- they're not merchants, the jobbers and the wholesalers, and they know that they can depend on the stamp on the outside of these containers, Arizona produce as meaning something because it has been packed according to the Arizona standards.
Byron R. White: Did the District Court -- how do you read the opinion of District Court? Did it say that these regulations weren't authorized by the state statute?
Rex E. Lee: I read the opinion of the District Court with the great difficultly Mr. Justice White.
Byron R. White: It implied that, didn't it?
Rex E. Lee: It certainly did.
Byron R. White: And to the extent that it did, we aren't very that position to disagree with that, are we?
Rex E. Lee: I know what you referring to Mr. Justice White. There are these provisions that say that under normal circumstances, you give certain amount of difference to the District Court. But, I would submit --
William J. Brennan, Jr.: It's a little more than that I think. Ordinarily, we don't undertake seriously to review in such as the state law.
Rex E. Lee: Mr. Justice Brennan, I submit that under circumstances such as this, there simply is no way that you can read the statute any other way. The cantaloupe statute in its present form says that all cantaloupes shall be packed in close standard containers approved by the supervisor. I just can't read that to say anything else than all cantaloupes shall be packed in close standard containers approved by the supervisor.
Byron R. White: That state was the administrator's had been vague and unlawful.
Rex E. Lee: That is correct.
Byron R. White: They administer the law for a long period of years, quite the contrary?
Rex E. Lee: And I learned my lesson --
Byron R. White: Is that right?
Rex E. Lee: Mr. -- yes that is correct, there were individual instances in which the administrator for not obeying the law. Mr. Justice White, the last time I was before the Court, I learned that that particular principle does not invalidate a statute, and we have cited Lassen versus the State of Arizona on that very point. That time, Mr. Justice Marshall and I were co-counsel in that case, and I think that has been adequately covered in our brief. Mr. Pike knows that he did wrong. That maybe a matter of concern for the officials of the State of Arizona, but it is not something that makes the statute unconstitutional. I do want to reserve five minutes for rebuttal. I understand that you still give me about five minutes. I like to treat just briefly the basic rules of law that had been laid down by this Court which are determinative on this issue. One of them has already been mentioned in the case that was argued before us, and that is that the judicial function in applying the Commerce Clause to statutes which are checked as allegedly violative of the Commerce Clause is a very limited one. The case of South Carolina versus Barnwell Brothers clarified once and for all that the test under the Commerce Clause is the same as it is under a substantive due process. And that under that test, the judicial inquiry stops with a two-pronged inquiry: Number one, is there a legitimate state objective, and number two, is the state regulation reasonably anticipated to carry out that objective? We submit that under other decisions of this Court, both of those requirements are clearly satisfied. You have Sligh versus Kirkwood which is discussed extensively in our brief. That's the case in which this Court upheld the Florida statute prohibiting the sale of immature or citrus or citrus which is otherwise unfit for human consumption. Now, the appellee has taken --
Potter Stewart: But before you move on --
Rex E. Lee: Yes.
Potter Stewart: Sligh against -- you kept repeatedly relying on three decisions as I -- my ears have heard it.
Rex E. Lee: Yes.
Potter Stewart: Sligh against Kirkwood and the Pacific States Box and Basket case --
Rex E. Lee: Yes, and Turner versus Maryland.
Potter Stewart: In Turner against Maryland, I don't' think it's in your briefs.
Rex E. Lee: Well, it is but it slips in there -- look on page 31.
Potter Stewart: Alright.
Rex E. Lee: It is cited in Mr. Justice Brandies' opinion of Pacific States Box & Basket Mr. Justice Stewart.
Potter Stewart: The internal reference.
Rex E. Lee: That is correct. It should -- upon -- after seeing the appellee's brief and reconsidering; I concluded we should have given it -- that we gave it too short --
Potter Stewart: -- a little that more star --
Rex E. Lee: That's correct.
Potter Stewart: Thank you.
Rex E. Lee: But these three cases, I submit to the Court clearly established the legitimate interest of the state, and that's all we have to show is that the state does have, the legitimate interest in preserving the reputation of its fruits and vegetables by setting these standards of quality and of pack. Now, the real issue in the case, the dispositive issue in the case is this, it rises in this fashion. The appellee as I read his brief agrees, demand on certain circumstances be a legitimate interest enforcing standardization, but he says that there is a qualifying consideration in this case because in the context of cantaloupes; they can't be packed except in a packing shed and we agree that under present technology, they can't. Therefore, in the appellee's view, this case comes within those decisions of this Court which have said that where it is the sole objective of the statute to require packing to be accomplished in the state that renders the statute unconstitutional, [Inaudible] Polar Ice Cream versus Andrews and so forth. And the appellee takes one more step as indeed he must, and that is to say that the purpose of the Arizona statute is the same and that is to preserve the packing business for the state. So that really, the ultimate issue, the dispositive issue between these two parties is what is the purpose of the statute? Is it the statute, is it the purpose which has been testified to on this record? Is it the purpose that is set forth in the preamble of the statute itself? Is it the purpose that is been upheld by this Court in Sligh versus Kirkwood, Pacific States and Turner versus Maryland, or is it a purpose which will make it invalid? Once the case is viewed in that fashion, I submit to this Court that the answer is very clear, because this Court has made it clear in a number of cases that it will not re-examine the wisdom of the state legislative determination. And that so long as there is a proper purpose that this purpose will be assumed to be the purpose on which the state legislature rely. I need not recant those cases at this time. They're set forth in our brief, and I believe that they adequately dispose of this contention. Unless the Court has any further questions, I would like to reserve the balance of my time for rebuttal.
Warren E. Burger: Thank you Mr. Lee. Mr. Abramson?
Jacob Abramson: Mr. Chief Justice and may it please the Court. My learned counsel has stated that the dispositive issue in this case is the purpose of the Arizona law, what is the purpose? It is already been made clear what the purpose is, and this is to achieve credit and to the State of Arizona for a good fruit. The concern is not about receiving discredit for poor fruit because in this case, the poor fruit is going to be packed in other states. It's to receive credit for a good fruit. Now, we submit --
Warren E. Burger: Well, I didn't understand this argument that way. I understood he had two barrels to his gun: One, to get credit for the good and to avoid the disadvantages of being credited with the bad if somebody sold bad fruit as Arizona fruit?
Jacob Abramson: Mr. Chief Justice, the argument of appellant is that Parker fruit is good fruit and he wants it to be labeled as good fruit. This is the main concern and his argument. He states this repeatedly that it's to enhance the reputation by identifying the fruit as Arizona fruit. The point I'm getting to is that the determining question here is not what is the purpose of the Arizona law, even if the purpose is to obtain credit. Although, this Court has never gone so far as to permit what the appellant seeks to do here in furtherance of that purpose, even to achieve credit we say is not an improper purpose. It's fine we say if one wants to do a good job and to get credit for it, but that is not the issue. The issue before this Court is how far may the State of Arizona go in trying to achieve this purpose? In order to achieve this purpose, the State of Arizona through the interpretation of the Arizona law by the appellant is saying three things must occur. One, the packing must be done in Arizona; Two, the packing must be done in packing shed in Arizona and in the context of this case where the Church Company does not have packing facilities at Parker and indeed, cannot have such facility because there are no railroad lines going in there, must construct packing facilities at Parker. To be sure appellant states, now the law doesn't in terms say you must do this and therefore, we can't hear you to complain, but this is the necessary effect of his order and in fact, the appellant in its brief expressly states this that this is the dilemma in which the appellee finds itself that in order to comply with the order, it must do these three things. Now, we submit that this goes too far in its encroachment upon the federal concern with maintaining a free-flow of interstate commerce. We submit it's contrary to decisions of this Court which we have cited; the Shrimp cases to which learned counsel has alluded to in his statement. We submit that this is the real issue; how far may the State of Arizona go in obtaining credit for a good fruit or even keeping out poor fruit? There has been no case cited by appellant in which this Court has gone so far as to say that these three requirements maybe imposed.
Warren E. Burger: Well, I thought the Sligh case certainly --
Jacob Abramson: Your Honor, the Sligh --
Warren E. Burger: -- was very much to that subject?
Jacob Abramson: Mr. Chief Justice Burger, the Sligh case involved a statute which stated simply that citrus fruits unfit for consumption shall not be handled. It had nothing to do with question of intrastate – interstate. It was purely a criminal statute and imposed a penalty for the handling of such fruit. The Sligh case would have been a case similar to ours. If the state in that case had said this citrus fruit must be packed in this state, but that was not the situation in the Sligh case. Mention has been made of the Pacific Box case. This involved a law of the state of Oregon which established certain standard containers to be used for packing in that state of raspberries and strawberries. An out of state manufacture of containers challenged this law saying I want to come into Oregon and sell my containers in Oregon, these were different containers from those provided on the Oregon law, and this Court held that Oregon may within its right prescribe containers, but their case did not involve the situation such as here. If Oregon statute said raspberries and strawberries must be packed in Oregon, this would have presented before this Court the same issue which it has before it now. This Court has stated --
Warren E. Burger: Suppose there's a factual difference that you -- you probably can't send raspberries in a bulk in truckloads. You got to have them in small containers so that that issue wouldn't come up there?
Jacob Abramson: We submit that the Pacific States decision was correct Your Honor that a state may provide that where commodities are packed within the state certain containers shall be used. But I submit again Mr. Chief Justice Burger that the statute in the Pacific States Box case did not state that the packing, the processing and packing of raspberries and strawberries shall be performed in the State of Oregon. Had it done so, it would have presented the same issue which we have here.
Potter Stewart: How about Turner against Maryland --
Jacob Abramson: Turner against Maryland -- I think this case gets -- this case gets closer. This was an 1882 case. Counsel for Western Growers has stated with reference to that case that it's cited a long string of statutes. These were statutes in a colonial times, much has happened since 1882, advancements in transportation, processing, packing, handling, and of course this Court since that time has rendered decisions in the Toomer v. Witsell, the Heidell cases, the Dean Milk case, and I think we're moving with the times. This Court has stated on numerous occasions that it will be guarded by practical considerations. Mr. Justice White has already touched upon one point that I would like to make, namely that the problem which brings us before this Court is one which exists in the border districts which joined the states of California and Arizona; that is to say the districts along the Colorado River. Here, the same climatic conditions prevail. Climate, weather atmospheric conditions know no state borders, and that given the same growing conditions, it is not uncommon for the same grower to have growing operations on both sides of the border. Now, the question was raised; what is the area of production? It's not too great Mr. Justice White because the crops which are involved are of such a highly perishable nature that they must be taken out of the ground, processed, packed and put in cars on their way within the matter of just a few hours. So, the distance does not -- you're not -- you don't have the possibility of dealing in large distances, I would say a radius of 30 miles, 40 miles, something of that nature. The Church Company the appellee here has operations on both sides as you know. It has operations at Parker under a lease with the Colorado River, Indian Tribes. This is a distance of 25 miles from the border and has been doing its packing at Blight on the California side, 5 miles over on the California side.
Byron R. White: Did they grow up cantaloupe on the Blight side?
Jacob Abramson: Yes, on the Blight side and because these are growers who don't enjoy federal subsidies, whose production cost and transportation and costs are among the highest in the nation. Their success or failure depends on their ability to be efficient, and this means to economize. So, if a grower of this kind requires packing facilities, he will put them on one side of the line or the other wherever they fit in with his operations. He's obviously not going to duplicate his facilities. Now, the same situation exists at Yuma on the Arizona side and at Bard on the California. These are just opposite to one another, across the river, the short distance of possibly 5 miles and for years, there has been transport of cantaloupes and other commodities from the California side at Bard over to Yuma on the Arizona side where they been processed and packed just as these cantaloupes had been at Blight. California as you know has a law very similar. We can draw fine lines about particular words or sentences. But basically, they're the same. There's testimony in the record that the California law and inspection, if anything is more stringent than the Arizona law, but we need not to make an issue of this. In any event, it's been going on from Bard to Yuma for a long time. California has never raised the question. They had never attempted to stop this practice. They reconciled it with their law. California, the State of California knows about this pending litigation and it has not --
Byron R. White: What -- when you packed at Arizona cantaloupes at Blight, do you put at California -- are you required of California law to say that they are California cantaloupes or just that they are packed at Blight?
Jacob Abramson: The California Mr. Justice White does have a law similar to that of Arizona which requires some identification on the container. The record shows that in this particular case where the same containers, very same containers are used both where packing is done in Arizona and in California has imprinted upon it packed in season in Arizona and California, main office Salinas, California. This is where the main office of the Church Company.
Byron R. White: Packed in season?
Jacob Abramson: Packed in season in Arizona and California.
Byron R. White: Well, why would it -- that's the label that you put on to your Blight's pack, Arizona cantaloupes --
Jacob Abramson: That's our trade, yes.
Byron R. White: Why would you say Arizona because they aren't packed in Arizona?
Jacob Abramson: This is what appears on the crate, packed and seasoned in Arizona and California indicates that packing may go one in each state. This brings me to another --
Warren E. Burger: But isn't that what Arizona's legislature is claiming or by this statute claim was the right to have Arizona products identified as such?
Jacob Abramson: In response to this point Mr. Chief Justice, I believe I should explain how these cantaloupes are marketed. Some question has been raised, I think possibly by the Chief Justice as to whether these commodities are identified at the store level, but they are not. These cantaloupes are sold by the growers to a small group of buyers who are present right there on the spot. They're there everyday, they are their representatives. They are at the point of production, whether it's the packing shed or field, they're inspecting the produce. They know exactly where it's been grown. They know who the grower is. They know the quality or they wouldn't be buying it. They're there to inspect the quality.
Byron R. White: Who are these buyers?
Jacob Abramson: These are wholesale jobbers. They're distributors, receivers, but who have their representative's right there on the spot and they move from place to place as the harvest progresses.
Byron R. White: How about their customers?
Jacob Abramson: Their customers are in turn are receivers, the car lot receivers all over the country who receive these in car lots. The sales are in car lots or truckloads. You see, they are not sold as individual packages. And eventually, when they reach their terminus, terminal points throughout the nation, the distributors will then distribute them among the chain stores possibly, among retail stores, but once they reach the store, they're taken out of the package and put on a shelf. The housewife doesn't know where this cantaloupe has come from. If she likes, if it tastes good, she will come back and buy it. So, --
Warren E. Burger: I don't know how you can generalize that way on the state of this record. Certainly, there are housewives who go into stores and having had a good experience of favorable experience with certain types of fruit or other merchandise will say is this California or is it Texas or is it Arizona?
Jacob Abramson: Yes --
Warren E. Burger: Now, each of those states has an important interest in protecting that, do they not? Isn't that what the Sligh case really was largely --
Jacob Abramson: The Sligh case --
Warren E. Burger: -- about and Turner as well?
Jacob Abramson: The Sligh case Your Honor if I may submit is a case -- is a health and safety measure which seeks to prevent the use of citrus fruits unfit for consumption. It is not directed to the question which has been raised by appellant and namely the protection or the gaining of credit for good fruit.
Warren E. Burger: Maybe that was the -- maybe that's what the record supported, but the court seemed to go beyond that because this Court's had the protection of the state's reputation in foreign markets, with the consequent beneficial effect upon the great home industry may have been within the legislative intent?
Jacob Abramson: Yes, to prevent export of poor fruit, but appellant here does not stress this, but stresses rather the credit for good fruit. We have indicated also that the appellant's order represents the reversal of long time practice. He states before this Court that he was wrong all these years; that his conduct was unlawful. When he issued the order to appellant, he gave no reasons, no explanations. At no time has he stated whether there's been any -- rather his conclusion that he was wrong was the result of any decision. No mention of any such thing, but he says he was wrong -- had even properly advised, he would have done differently. Well, we have the State of California same situation. The State of California has never raised any question and does not raise one at this time. It knows of this litigation and has not sought to intervene in any way. In conclusion Your Honor, we submit that in making this three-fold requirement in consequence of appellant's order, namely that the packing be done in the State of Arizona, that this be done in a packing shed in Arizona and that the appellee construct packing facilities in Arizona, goes far beyond and anything this Court has sanctioned in modern time. We submit that it is not the prerogative of the State of Arizona to say to a grower you must construct your packing plant in this state. This is an economic consideration which the businessman must make works to his best advantage to establish his facilities. We submit that the decision of the court below was fully justified both on the law and the facts and should be affirmed, thank you.
Warren E. Burger: Thank you Mr. Abramson. Mr. Lee, you have seven minutes.
Rex E. Lee: Thank you Your Honor. Significant contention raised by Mr. Abramson, and this of course is been at the heart of disposition throughout this entire litigation, is that the purpose of this statute is to require the packing be done in the State of Arizona. We simply assert that is not the purpose and under the well established rules of statutory construction in constitutional cases is set forth on page 34 to 39 of our brief. Court simply don't ascribe improper purpose of the statute. The statute nowhere says anything about a packing shed. I would point to the Court that this statute deals with 37 different products; 37 different products, only one of which is cantaloupes. Most of them don't have to be packed in the packing shed. Most of them can be packed in the field, and we can inspect them there, and that's fine. The concern of the statute is not the packing be done in the state, the concern of the statute is that we be able to inspect it in the pack in order to determine that the statutory standards --
Potter Stewart: Isn't it -- is it the effect of the statute?
Rex E. Lee: In this case Mr. Justice Stewart, that is correct.
Potter Stewart: Not cantaloupes, that is to be packed inside the state?
Rex E. Lee: There is no question in this case that that is correct. So the question is, where does it fall? Is it the Sligh versus Kirkwood, Turner versus Maryland case, or is it a Heidell case? And I would simply point out that in Heidell, this Court concluded that there was no other possible reasons for the requirement that -- a packing within the state other than the sole requirement that they wanted to keep the packing business for themselves. Were that the case in this statute, it would be made applicable to lettuce, it would be made applicable to asparagus, it would be made applicable to colliflower and the whole gamut products, it is not. There is no requirement. The only reason that they have to pack in the state is because they -- that they have to build a packing shed is that they cannot pack except in the packing shed. So far as we are concerned, if they want to pack underneath the shade tree, that's fine, we can then carry out the inspection responsibilities with which Mr. Pike is charged under the statute. Now, with regard to Sligh versus Kirkwood, I simply thoroughly disagree that that was a -- a health and safety measure. I need not re-read the language that the Chief Justice has read. That language is significant to two reasons. First of all, it points out that it is a proper purpose to be concern with the state's reputation in interstate commerce, and secondly, it points out that as long as that could have been the legislative purpose, then the statute will be upheld. Mr. Abramson as I understand his comments, agreed that Turner versus Maryland was against him, but argues that is too old and therefore, the Court ought not to follow it. Mr. Justice Stewart, so that you don't think that I'm totally incompetent in having missed it the first time around, let me point out that the language that I found which thoroughly resolves this comes at the end of a very long, long opinion in order to save you the same problem. Might I point out that is at page 57 of the United States reports. Finally and in conclusion and I won't need to use my seven minutes, this is an economic regulation. It's a regulation imposed by a state pursuant to its police powers, and this Court has made it very clear, starting at Nebbia versus New York that there is a heavy burden which rests upon those individuals who seek to upset that police power regulation on the ground that it is unconstitutional. There is no federal statute with which this is inconsistent, certainly under this Court's decision in Paul and so forth. On conclusion, --
Warren E. Burger: Before you --
Rex E. Lee: Yes.
Warren E. Burger: -- before you get to your summary, has this statute involving as you suggest many other products of Arizona been challenged in the state courts at any time?
Rex E. Lee: Never on these grounds Your Honor. The – there have been probably half a dozen at the outside, pieces of litigation involving these statutes and most of them have involved bonds that the shippers had put up and -- nothing of this magnitude.
Warren E. Burger: None of the issues involved here?
Rex E. Lee: None of the issues involved here have ever been passed upon -- have even been passed upon by a state court. It is agreed on all sides supported by the record, supported by square holdings of this Court that the State of Arizona has a legitimate interest, so long as these fruits and vegetables remain in the language of this Court within the bosom of the State of Arizona in requiring that they be packed according to the standards that the State of Arizona has prescribed. Once you start from that premise, it is simply inevitable that the state has the right to enforce those standards according to its own inspection officers. The statutory standards necessarily involve manners of judgment. Material misrepresentation of the entire quantity, uniformity of quality, uniformity of size, uniformity of color, these are judgment matters. We submit that the State of Arizona has the right to have these judgment matters resolved by the judgment of its own inspection officers and not inspection officers of someone else outside the state. In conclusion, when this first came up, Mr. Pike came to me and said well now, what is this law, this federal law that our law violates? And I said well Mr. Pike, it's the constitution and he said well, it's written in English isn't it? Can I read it? And I said well Mr. Pike, the constitutions, you have to understand, have a wealth of decisions behind him. And then he said nevertheless, it's written in English, let me see it. I showed to him and he said Congress shall have the power to regulate interstate commerce. He said has Congress passed a law saying that we can't have a Standardization Act in Arizona? I of course, replied that Congress had not passed such a law. I think that it is important to bear in mind because I'm sure this Court well knows, in the absence of congressional legislation, the judicial function is a narrow one, and we submit that this case clearly falls within the bounds of legitimate exercise of state police power and the judgment of the lower court should be reversed. Thank you.
Warren E. Burger: Thank you for your submission Mr. Lee, thank you Mr. Abramson. The case is submitted.


William H. Rehnquist: We'll hear argument next in Number 88-774, Newman-Green, Inc., versus Alejandro Alfonzo-Larrain. Mr. Neal.
Phil Caldwell Neal: Mr. Chief Justice, and may it please the Court: The narrow issue presented by this case is whether a court of appeals may permit amendment of the complaint to drop a nondiverse defendant and thereby perfect diversity jurisdiction so that the court may go on to decide the merits of the appeal. The court below held that it had no such power. The courts of appeals for the Second, Third, Fifth, Ninth and District of Columbia Circuits have held to the contrary and, in fact, no court since 1942, which was the Seventh Circuit again, has held that it did not have such power. It is a narrow issue, but perhaps the broader significance of it is that it raises a question whether the powers of the courts of appeals, so far as possible, should be conducted in a way... should be construed in a way that permits the just, speedy and inexpensive termination of controversies as the Federal Rules of Civil Procedure admonish. The case arises from a suit brought by the Plaintiff, Petitioner here, the Newman-Green Company, to enforce certain individual guarantee agreements of individuals in Venezuela which guaranteed royalty payments due from a Venezuelan corporation under a license agreement with the Plaintiff corporation. The Plaintiff... the complaint alleged that the five individual Defendants, that four of them were residents and citizens of Venezuela, and that the fifth-named Defendant, one Bettison, was a citizen of the United States, resident in Caracas, Venezuela, and the complaint alleged jurisdiction based on Section 1332 of Title 28. The... no objection to the jurisdiction of the court, of the district court, was made by the Defendants at any time, although they did, oddly enough, move to quash service of process. That was overruled. The case was litigated in the district court for about four-and-a-half years, and you can get some idea of the extensiveness of the... of the litigation and how controverted it was by scanning the docket entries which are reproduced in the... in the joint appendix. At length after four-and-a-half years, during which time the district court had rendered several opinions, the district court rendered summary judgment which disposed of all of the claims against the five individual Defendants. The Venezuelan Corporation itself had intervened in the meantime and had certain counterclaims pending. The district court gave judgment in part for the Plaintiff, and that judgment was eventually satisfied. No appeal was taken from it, but in important aspects gave judgment, summary judgment for the Defendants and entered a Rule 54(b) certification, upon which appeal was taken to the Seventh Circuit. When counsel for the Appellant rose to make his argument, a judge of the Seventh Circuit said, "Do we have jurisdiction of the case? " And it was then and only at that time that anyone realized that in fact, under Section 1332, there was no diversity jurisdiction.
Harry A. Blackmun: Which judge was that, Mr. Neal?
Phil Caldwell Neal: That was Judge Easterbrook, Justice Radmun... Blackmun.
Harry A. Blackmun: I'm not surprised. [Laughter] Who wrote the dissent?
Phil Caldwell Neal: Judge Easterbrook wrote the dissent, yes. Judge Easterbrook raised the issue and then suggested to counsel that the problem could be solved if the Plaintiffs cared to file a motion to dismiss Bettison, the nondiverse Defendant. The argument continued. The case was taken under submission. The Plaintiff did indeed file such a motion. The Defendants, the Appellees, filed a motion to dismiss the case rather than to dismiss the Defendant, and when the opinion came out, Judge Easterbrook dealt first with the jurisdictional point and then said we grant the motion to dismiss the nondiverse Defendant and proceeded to decide the merits. A motion for rehearing and rehearing en banc was filed. Seventh Circuit granted rehearing en banc, and the result of the en banc hearing was that the majority of the court, in an opinion by Judge Posner, held that Judge Easterbrook's opinion was erroneous, vacated the... vacated the decision of the panel, and held that the court of appeals had no power to amend, to permit the dismissal of a nondiverse Defendant, that that could be done only in the district court and remanded the case to the district court for further proceedings to consider whether such a motion should be granted. And indeed, it perhaps bears noting, that the opinion of Judge Posner suggested that the district court might choose to exercise its discretion by saying six years is long enough, and out you go, rather than merely addressing whether they... whether the other side had been somehow prejudiced by the inclusion of Bettison as a Defendant during that period.
Anthony M. Kennedy: I take it you don't argue that the circuit didn't have the power to do that if it had chosen to do it.
Phil Caldwell Neal: To remand?
Anthony M. Kennedy: Yes.
Phil Caldwell Neal: No,... no Your Honor. We only argue that the court had power which... which it disclaimed to do the opposite and to decide the case then and there by permitting the dismissal.
Anthony M. Kennedy: But really a remand of the district court could have been a limited remand for the requesting the court to act within 14 or 21 days, could it not?
Phil Caldwell Neal: And... and indeed, according to a fairly substantial body of authority, it could have been a remand that directed the district court to permit a dismissal of the nondiverse Defendant on the ground that any contrary action would be an abuse of the district court's discretion. The result of the court of appeals' decision, of course, is that the case would, at a minimum, have to go back to the district, where at best, perhaps, the District Judge would do what Judge Easterbrook had said ought to be done, permit the dismissal of the nondiverse Defendant, and then reconsider and perhaps enter again the same judgment on the same grounds that the district court had done before, and then a new appeal would be started and a year later--
Anthony M. Kennedy: Well, it wouldn't necessarily be a new appeal. The circuit court could retain jurisdiction after... and remand for the limited purposes of determining this motion within 21 days, and the argument's been made before the panel, and the case is then correctly before it.
Phil Caldwell Neal: --Perhaps... perhaps it could. Needless to say, the... the majority of the Seventh Circuit didn't consider any such thing and indeed, one of the necessary consequences, which the majority of the court saw, was that the decision on the merits had to be... had to be vacated, and... and... and the whole case really had to go back for an exercise of judgment which the court of appeals saw it could not... it could not make.
Byron R. White: And you think that... I take it from your brief, you think that both Judge Easterbrook and Judge Posner were... were not on the right track, neither one of them?
Phil Caldwell Neal: Oh, no, Your Honor. We... we certainly think that Judge Easterbrook's panel did--
Byron R. White: But I thought you present a different rationale for it.
Phil Caldwell Neal: --Well, we presented... yes, we presented supporting rationale, I think, and maybe if I... if I go... if I go directly... directly to that, there is an... there is an issue in the case raised by... by Judge Posner's opinion and relied on very heavily by... by the respondents here that the whole business is of permitting the dismissal of a nondiverse defendant is offensive to fundamental issues... principles of federal jurisdiction. The other issue, which we think is the only real issue, and I will come back to that one, was whether there is any authority for the court of appeals to permit amendment of the... of the complaint, and there is a specific statute, Section 1653 of Title 28, which says defective allegations of jurisdiction may be amended in either the trial or the appellate court. And... and the majority of the court below held that that didn't reach this case. Judge Easterbrook disagreed on that. What we... and Judge Posner's opinion said there isn't any other source of authority. Courts of appeals don't permit amendments. I suppose what... what we have contributed, if anything, to the solution of this problem is that if you go back to Section 32 of the Judiciary Act of 1789, it expressly confers authority on the courts of appeals, as well as the district courts, to permit... to permit amendment, and... and that... that statute has been relied on more than once by this court to permit--
William H. Rehnquist: Amendments of the sort that you would have had to make, Mr. Neal? Judge Posner took the position when, I guess, the defective allegations of jurisdiction were... where the allegations didn't conform to fact and... does the Section 32 authorizer broader amendments than that?
Phil Caldwell Neal: --It's... it's very general and... it's very general in... in its language, Mr. Chief Justice. It's... it's... it's not directed expressly to amendments to preserve or correct jurisdictional defect. It's... it's... it's a general provision permitting the appellate courts to... to permit amendments, and Justice Story way back in... in 1812 wrote an opinion that circuit reported in... in 1 Gallison's Report called Anonymous decision, in which he said there's nothing at common law to prevent courts of appeal as well as trial courts from permitting amendments of the... of the pleadings.
William H. Rehnquist: The only appellate court in existence, I guess, at the time of the judiciary of 1789 or about to become in existence would be our Court.
Phil Caldwell Neal: Well, that is correct, except that in some... in some aspects the old circuit courts had an appellate jurisdiction from--
William H. Rehnquist: You could appeal from the district court to the circuit courts?
Phil Caldwell Neal: --Yes. But I... but I... and I... and... and... and Justice Story's opinion was rendered on circuit... I mean, in a circuit court as a Circuit Justice, so... so, there it is. There is... there's authority from the very beginning to do... to do exactly what the court below, the majority of the court below said there wasn't any--
William H. Rehnquist: And where is Section 32 to be found in the present?
Phil Caldwell Neal: --It's not, Your Honor. It... it... it continued as Section 954 of the revised statutes. It was relied on as late as 1925. I think, in an opinion of Mr. Justice Sutherland permitting in this Court the amendment of pleadings to show the raising of a federal question. But it evaporated with the revision of the judicial code in... in 1948, and--
Anthony M. Kennedy: Doesn't... doesn't part of it survive in 28 U.S.C. 777?
Phil Caldwell Neal: --Well, 777 was... was omitted from... from the judicial code of 1948, and the revisors said that... that these provisions had been picked up in the Federal Rules. Now--
Antonin Scalia: Mr. Neal, 777... and that was sort of your argument that... that the old Section 32 survives until it's finally picked up somehow in Rule 15, but by the time it gets picked up in Rule 15 with the 48 revision, it... it no longer is the broad jurisdictional provision that you... that you referred to. It has... when it... when it becomes revised statute Section 954... and I don't know when that came about, but certainly later when it's Section 777, it reads, "No summons, writ, declaration, return, process, judgment, or other proceedings shall be abated, arrested, quashed or reversed for any defect or want of form. " "It... it becomes... and it goes on to say. " Such court shall proceed and give judgment, "blah, blah, blah". Such court shall amend every such defect and want of form other than those which the party demurring so expresses and may at any time permit either of the parties to amend any defect in the process or pleadings upon such conditions as it shall in its discretion by its rules prescribed. "Doesn't all that"--
Phil Caldwell Neal: --That is a part of--
Antonin Scalia: --just go to defects of form by... by then? Don't you think the last clause of that, of 777, fairly read only applies to defects of form? In other words, I don't read 777 as being really the same as 32.
Phil Caldwell Neal: --Well, I think there were changes. I think there were changes in language, Your Honor, and I will not be... I will not be categorical about it. But, as I say, Section 954 was relied on as late as... as 1925 as permitting this kind of amendment there having to do with federal question jurisdiction rather than diversity jurisdiction, and 954, I think, became 777 in the codification of 1926 immediately thereafter. And I'm... and I'm not aware of anything that suggests that there was a purpose at that point to... to... to narrow the... the power. In any event, I do not... it seems to me that the significance of this background is simply that there was recognized from the very beginning a power... power to permit amending the complaint, even on appeal, in order to avoid unnecessary further proceedings at the district court level. This court relied on... on that in... in a number of decisions along the way; Kennedy against the Bank of Georgia in 1850. And even without reliance on that statute, I believe that Justice Marshall... Chief Justice Marshall's decision in Carneal v. Banks back in 1825 is an express... an explicit authorization. It doesn't talk about... about trial or appellate courts. It's pretty clear if that opinion is read carefully, which I don't think anybody else involved in this case has really done, that that opinion is exactly what Judge Easterbrook did in the... in the court below. I think I'd like to reserve the remainder of my time for rebuttal, if I may.
William H. Rehnquist: Thank you, Mr. Neal. Mr. Heap.
Frank K. Heap: Mr. Chief Judge, and may it please the Court: There is a serious of inescapable facts in this case, and those facts very simply are that at the time this complaint was filed, there was no federal subject matter jurisdiction. At the time the case was tried in the district court, there was no federal subject matter jurisdiction. At the time the panel heard the case, there was no subject matter jurisdiction. At the time the full en banc court heard the case, there was no federal jurisdiction, and there is no federal jurisdiction as I stand here today. Mr. Bettison is an offending party. The question is what does one do about it. There was great discussion by both the dissenting opinion and the en banc opinion on the applications of Rules 15 and Rules 21. There was no discussion of Rule 1. Rule 1 very clearly says, "These rules govern the procedure in the United States district courts. " --does not govern the procedures in the circuit court. Whether the circuit court wishes to adopt those rules, it may, but it hasn't in the Seventh. More importantly, all of the opinions have ignored Rule 12(h)(3), and that rule very clearly say whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.
William H. Rehnquist: Mr. Heap, supposing that it had come to the court of appeals' attention that this fifth Defendant was, in fact, diverse, so that you're not talking about an... an amendment to change facts or... or a dismissal of a defendant who couldn't be sustained with complete diversity, but just an... an erroneous factual allegation. Could the court of appeals have done nothing about that?
Frank K. Heap: I believe that Rules 15... 1653 very clearly covers that situation, and that may be done in either the trial court or the appellate court if it is a defective matter of pleading; i.e., in your particular case, Chief Judge... Justice, the case where you had mispleaded, where you had diversity. The problem with 1653, however, is that you cannot drop people in order to create that jurisdiction. There's a long list and long series of cases on that very subject.
Byron R. White: Do you think the district court has the power to dismiss a nondiverse--
Frank K. Heap: I do not, Your Honor. I... I believe this matter should... should have been direct back to the district court for a ruling under rule 12.
Byron R. White: --Well, do you... do you think the... do you think... you don't think Judge Posner was right that the district court could have done this?
Frank K. Heap: Judge Posner's opinion is... is very brief. It covers the first two paragraphs. From that point on, Judge Posner seems to get into a long dissertation--
Byron R. White: Well, I thought... I thought most of the... I thought the two opinions said all that could possibly be said about the case, but--
Frank K. Heap: --I would agree, Your Honor.
Byron R. White: --but Mr. Neal has certainly introduced a new element.
Frank K. Heap: Well, I don't think that there has been one case, in deference to Mr. Neal's position, that has taken the position that federal subject matter jurisdiction can be created in a manner that it was attempted.
Byron R. White: So that all the district court could do was just dismiss the case?
Frank K. Heap: That is our position, Your Honor.
Anthony M. Kennedy: Mr. Heap-- --Suppose both parties had stipulated that the non... that the nondiverse party could be dismissed.
Frank K. Heap: I don't believe that parties have the right to stipulate to federal jurisdiction, Your Honor.
John Paul Stevens: Mr. Heap, is there is a difference between dropping parties to create federal jurisdiction and adding parties? Take the Mullaney case, Justice Frankfurter's opinion. How do you distinguish between the two?
Frank K. Heap: In the Mullaney case, Your... Justice, the... the federal court had jurisdiction. It was a federal question that was involved. It had federal jurisdiction. The problem involved the... whether or not the principal of an undisclosed... or of a disclosed or the issue--
John Paul Stevens: Well, it didn't have jurisdiction if none of the plaintiffs had standing.
Frank K. Heap: --The plaintiff ultimately... actually, by the time the case was decided had standing under the federal--
John Paul Stevens: Well, because they'd added two parties who clearly had standing.
Frank K. Heap: --That is correct. But the controversy that existed between the parties was between diverse citizens. It was... it was a suit that was originally styled in the name of the case.
John Paul Stevens: Well, would you say that if it were clear that there had been no jurisdiction before the additional parties were added, that the court could not have allowed that to take place?
Frank K. Heap: That would be our position, yes.
John Paul Stevens: I see. Well, under the en banc opinion, you're going to be in the district court. It's remanded for further proceedings in this case.
Frank K. Heap: That is correct, Your Honor.
Byron R. White: And you say it shouldn't have been remanded for that purpose at all. It should have been dismissed.
Frank K. Heap: No, no. My... my argument was that it should be remanded to the district court with directions that a ruling under Rule 12 be entered. There was no federal jurisdiction, and the case should have been dismissed.
Byron R. White: So, you say it should have been dismissed.
Frank K. Heap: That is correct, by the district court.
Byron R. White: Yeah. Well... but the en banc opinion would permit the district court to consider whether just to drop the nondiverse party.
Frank K. Heap: I think if you read judge--
Byron R. White: I'm not sure you're entitled to argue--
Frank K. Heap: --Your Honor--
Byron R. White: --dismissal theory here without cross-appeal.
Frank K. Heap: --Well, I think... I think, Your Honor, that very recent cases including the Tahoe... Lake Tahoe case very clearly indicate that subject matter jurisdiction can be raised without a cross-appeal. The fact of the matter is Judge Posner, if you read his opinion, was constrained because of a rather lengthy series of discussions, as Mr. Neal has pointed out, and a conflict between the various circuit courts from taking an action other than follow either Rule 21 or Rule 15. I think the time and the reason this case has importance, I believe, today is that this court ought to give direction to the circuit courts as to what you do when you clearly have no federal subject matter jurisdiction. This is an extension--
Sandra Day O'Connor: Well, it's not an Article III jurisdictional problem, in any event, is it, do you think?
Frank K. Heap: --I believe so. There's no basis other than diversity. Diversity is the only basis upon which this case is brought. This is... is basically a state jurisdiction.
Sandra Day O'Connor: Why shouldn't a party plaintiff have some control over the plaintiff's own case after it's filed, to the extent of being able to seek dismissal in these circumstances?
Frank K. Heap: The Plaintiff chose to bring and style his suit in the federal district court and alleged jurisdiction which didn't exist.
Sandra Day O'Connor: I don't see why the plaintiff's control should automatically terminate with the filing of a complaint.
Frank K. Heap: I don't think we're arguing their control should... should terminate. If, in fact, there is federal subject matter jurisdiction, the case proceeds. If there is not, I think the case must be dismissed.
Anthony M. Kennedy: What about Rule 15(c), the relation-back rule? Do the cases hold that the relation-back rule, the cases in the circuit courts hold that the relation-back rule doesn't apply if there's a jurisdictional defect?
Frank K. Heap: There are cases that have applied, and particularly on the West Coast, have applied Rule 15 to allow this relation back. There are an equal number of cases in the circuit that the test of federal jurisdiction is determined at the time the case is filed and subsequent events don't change that fact. It's a very difficult situation. It has never reached this Court before. The Court has come very close in a couple of cases to address this question, but it's... my research has revealed this is the first time the issue has been directly before this Court.
Antonin Scalia: To come back to Justice O'Connor's question, it's not really an Article III problem unless you think that Article III requires complete diversity. We've never held that, have we?
Frank K. Heap: I think--
Antonin Scalia: I mean, Congress might provide, might it not, as far as our opinions show that even if there was not complete diversity, so long as you had some diverse parties in the suit, the suit could proceed in federal court? And if that's true, then what was involved here was simply a failure to comply with the statute and not with Article III. And Congress could, by statute provide that, well, complete diversity is the ordinary rule, but we will allow a suit that had incomplete diversity to be valid from the beginning so long as it is later amended to create complete diversity. That would comply with Article III, wouldn't it?
Frank K. Heap: --I don't believe so.
Antonin Scalia: You think complete diversity is required by Article III?
Frank K. Heap: I think that the federal court is a court of very limited jurisdiction. That jurisdiction is set forth from the sovereign... it happens to be the people of the United States, as embodied in the Constitution, and I don't believe the Congress has the authority to expand that. It requires diversity of citizenship. Diversity is what's required.
Antonin Scalia: Well, I think there is diversity when some people on both sides of the suit are from different states. Why isn't that diversity?
Frank K. Heap: It requires diversity in suits by citizens of one state against residents or citizens of another. Mr. Bettison is a stateless citizen. You cannot obtain diversity citizenship over Mr. Bettison pursuant to the United States Constitution. It is not--
Antonin Scalia: I'm glad you think it is so clear. I--
Frank K. Heap: --I am trying to find a simple solution to what has now been 30 years of confusion in the circuit courts. If there are no further questions... thank you, Your--
William H. Rehnquist: --Thank you, Mr. Heap. Mr. Neal, do you have rebuttal?
Phil Caldwell Neal: I think I would only... only like to comment on what seems to me to be a misconception, not only in Mr. Heap's argument, but also in Judge Posner's opinion. And that is that what is involved in this case involves somehow changing the facts as they existed when the complaint was filed. We have... we do not... we do not question the general position that jurisdiction in a federal court is determined by the facts as of the date the case was filed. No facts are being changed here. It's not as though you were trying to show that Mr. Bettison had become a citizen of a state, even though he was not at the time the action was filed. All that's being changed here is a... is a pleading. It is dropping an allegation which defeats federal jurisdiction, and Section 1653, on its face, is designed to permit the changing of pleadings, not the changing of facts. This is not the changing of facts. I think the other thing that I would... and, of course, to... to call that into question is to call into question the massive body of precedent that goes all the way back to 1825 and has been continuous. We've set forth on... on I think two or three pages of our reply brief the cases, and they're only part of the cases. And even though Judge Posner in his opinion toward the end of it, seemed to express some discomfort with that thought, the cases are there, and I submit that you really can't reconcile those cases with what's really the fundamental premise of Judge Posner's opinion.
John Paul Stevens: Mr. Neal, there's one thing about this case that puzzles me that I notice Professor Easterbrook and Professor Posner and yourself and your opponent, Judge Shader, all have a connection with the University of Chicago Law School. I just wonder why that faculty can't straighten the matter out like this a little more consistently. [Laughter]
Phil Caldwell Neal: I've been baffled by the same thing, Your Honor. [Laughter] And it's really what makes me think that the kind of admonitory purpose of Judge Posner's opinion, which seems to me to be a kind of dunce cap theory of jurisprudence. Go back to the district court, and that's wearing the dunce cap, and everybody will see and be wiser from there on. If they were not successful in imparting this wisdom when it was part of their function to do so, I'm a little skeptical that this opinion will have all that... all that effect. And I suppose the only thing I... I should throw in here in view of the string of University of Chicago people you've mentioned who were associated with this is... the only explanation I was able to get why my younger and brighter colleagues who were participants in this error was one of them said yes, he took federal jurisdiction at the University of Chicago, but it was taught that year by a visiting professor from Harvard, and they didn't deal with diversity jurisdiction. If there are no other questions, I will--
William H. Rehnquist: Thank you, Mr. Neal. The case is submitted.