Warren E. Burger: We will hear arguments in Number, 1775, Massachusetts against Westcott. Mr. Whitehead you may precede when you are ready.
Whitehead: Mr. Chief Justice may it please the court. This case is here on a writ of certiorari to the Supreme Judicial Court of Massachusetts. It involves the criminal action brought by Massachusetts against Jack B. Westcott for violation of Chapter 35 of the Acts and Resolves of the General Court of Massachusetts for the year 1923. Chapter 35 makes it unlawful during the months of July, August and September. For any person who has not been a legal resident of Massachusetts during the preceding year to use beam or otter trawls to direct a fish and certain of the waters of Vineyard Sound. Vineyard Sound is a body of water lying between the Island of Martha’s Vineyard and the Elizabeth Islands, off the coast of Massachusetts. The sole issue before the court today is where the Chapter 35, and so far as it differentiates between residents and non-residents of Massachusetts, violates the Privileges and Immunities Clause contained in Article 4 Section 2 of the constitution. The facts maybe briefly stated. Mr. Westcott is a resident of Rhode Island. On September 5th, 1973, he undertook to drag by means of an otter trawl for scup and fluke, which are migratory fish in the waters described by Chapter 35. He was thereupon arrested by an officer of the Massachusetts Department of Natural Resources and charged with violating statute. On April 24th, 1974, he was tried and found guilty of this violation by the District Court of Massachusetts. Upon his conviction in the District Court, he pursued his rights under Massachusetts’s law, to do an over-review in the Superior Court. However, in lieu of the trial in the Superior Court, the parties filed an agreed statement of facts. Westcott then presented a motion to dismiss the action based upon two grounds. First, the Chapter 35 violates the Privileges and Immunities Clause contained in Article 4 Section 2 and Second, that it violates the Equal Protection Clause of the Fourteenth Amendment. The Superior Court reserved decision on the motion to dismiss and reported the constitutional questions to the Appeals Court of Massachusetts. Shortly thereafter, the Supreme Judicial Court granted direct appellant review. On March 12, 1976, without ruling on equal protection claim, the Supreme Judicial Court declared that Chapter 35 does violate the Privileges and Immunities Clause in order that the motion to dismiss be allowed. It is our position that the Supreme Judicial Court erred in finding Chapter 35 unconstitutional. I would like to begin my argument by discussing the relationship between the fisheries of Massachusetts and the State. I will then proceed to the constitutional doctrine by which we believe this court has given recognition to that kind of interest. The fisheries of Massachusetts are one of the most important natural resources of the State. In economic terms they provide the basis for one of the states most significant industries. Equally as important as economics though, they furnished the basis for a unique way of life for many of the states citizens. That way of life is exemplified in such well known seaports as Nantucket and New Bedford and gives the state a quality distinct from that, which other states have.
Speaker: Did you make the same statement about a Rhode Island citizen?
Whitehead: What statement is that, I am sorry I did not understand the question?
Speaker: Well, that fishery is a unique and important aspect of the economic life of the common wealth of the state, etcetera, etcetera, etcetera.
Whitehead: I think it is more likely that the fisheries of Rhode Island would be greater interest to a Rhode Island resident than would be in the fisheries of Massachusetts. Although, of course, Mr. Westcott contends that he is also interested in the fisheries of Massachusetts. However, the fisheries of Massachusetts, I think, account for a way of life in Massachusetts, which is somewhat unique from that, Rhode Island, New Hampshire, or any of the other coastal states. They serve as a major reason why many people come to live within Massachusetts and why many others who were born there remain. In short, they constitute a primary factor underlying the state’s continuing vitality. However, just as they are an important resource, the fisheries of Massachusetts are a fragile one. They are therefore worthy of special protection by the state. It is our position that this court has set forth a framework, which gives recognition to the unique interest, which the state possesses in its natural resources. In the past it has used that framework to answer challenges brought under the Privileges and Immunities Clause. Specifically, in cases such as McCready v. Virginia, Geer v. Connecticut, and Patsone v. Pennsylvania, the court has ruled that the citizens of a state possess in a collective capacity a property interest in the state’s resources. The court has further ruled that accordingly, the right of those citizens to use the state’s resources is not a right derived from the citizenship per se but rather a right derived from their citizenship and their property combined. It is therefore not a privilege or immunity of citizenship guaranteed to the citizens of other states under the Privileges and Immunities Clause. On only one occasion has the court departed from this analysis, that was in Toomer v. Whitsel decided in 1948. In Toomer, the court held that the right of the citizens of South Carolina to take migratory shrimp from the three-mile marginal belt located off of that state’s coastline was not a property right but rather was a privilege or immunity of citizenship. As such it was not a right which could be denied to the citizens of other states. Massachusetts concedes that if Toomer controls here, Chapter 35 must be held unconstitutional. However, we contend that Toomer, no longer serves as valid precedent. The court in Toomer declared that South Carolina did not posses an ownership interest in the shrimp for two reasons. First, it was the court’s view that migratory animals are by their nature inherently incapable of being owned. Second, a prior decision of the court had held that that Federal Government possesses paramount control of the resources of the marginal sea such that none of those resources is susceptible to state ownership. The second basis of the court’s decision in Toomer , namely that the resources of the three-mile belt and one of the paramount control of the federal government has been completely undermined by the passage of this Submerged Lands Act in 1953. By that legislation, Congress expressly conveyed to the states both title two and ownership in all the resources of the marginal sea. Accordingly, the states now possess the same rights of ownership in those resources as this court had held them to possess with respect to human resources. Thus, if Toomer has to control at all in this case, it must be on the first ground articulated by the court, namely that migratory animals are by their nature inherently incapable of being owned. That ground finds no support in prior Supreme Court adjudication. This court had never before held that a state’s ownership in migratory animals differed from its ownership in stationary animals. Even more significantly, the congresses, when it passed the Submerged Lands Act to know such distinction. In its conveyance, it conveyed title and ownership to all the resources of the marginal sea, specifically all fish. We submit that the relative mobility of the given species is an illusive concept. That being true, the appropriateness of the distinction based upon that concept is a matter best left to congressional analysis. In this instance, Congress has determined that mobility is not the criteria and upon which important right should turn and that being the case, this court should respect this judgment. We submit that the court should now find that migratory fish located in the three-mile belt are in fact owned by the respective states.
Speaker: And therefore?
Whitehead: And therefore, the right to take those fish is a property right and not a privilege or immunity of citizenship.
Speaker: The taking of them maybe reserved for citizens.
Whitehead: That is correct.
Speaker: So that the state could simply say, no nonresidents may or no non-citizens may fish in our waters.
Whitehead: That is correct, under the Privileges and Immunities Clause.
Speaker: And when the fish swim out of Massachusetts’s waters into Rhode Island, what are the schools?
Whitehead: Scup and fluke do not have that kind of migratory characteristics.
Speaker: Well, suppose we had a migratory fish?
Whitehead: At that point, when the fish are in Rhode Island, it is Rhode Island that has the special interest in those fish.
Speaker: I know but we are talking about ownership.
Whitehead: And the proprietary interest in those fish.
Speaker: So ownership shifts as the fish migrate up and down the seaport states?
Whitehead: That would be true of fish that migrate up and down the coast. However, we submit that our case is…
Speaker: Now, Toomer seem to think that ownership language is not a matured hand for regulatory power, is it not?
Whitehead: But that statement in Toomer applies directly in the face of several decisions decided by this court prior to that time. The most significant of which is McCready v. Virginia.
Speaker: What about the cases against nonresidents, non-citizens may not own land in the states.
Whitehead: All we are talking about here is public property, if it bars non-citizens from acquiring private proprietary.
Speaker: But the state will not forbid foresting of the state owned forest.
Whitehead: That is correct.
Speaker: If they had called for bids or the proposals to cut timber, they could reserve that for citizens.
Whitehead: That is correct, I think that is…
Speaker: What about the sale of tax forfeited property, could that be limited to citizens of the state, residents?
Whitehead: If that were deemed public property of the state -- and I think it would be, I believe the state could restrict the --
Speaker: What about the oil and gas on the state owned land?
Whitehead: It would be particularly true with respect to oil and gas.
Speaker: So the of the placing of oil in the three-mile belt, it could be limited to –
Whitehead: That is correct, but we are not saying that --
Speaker: Do you have some support from that?
Whitehead: I think McCready v. Virginia is the primary support.
Speaker: Anything else?
Whitehead: Geer v. Connecticut said that he state-owned wild birds in the state; Patsone v. Pennsylvania said that the --
Speaker: Well state owned and what they do about it?
Whitehead: In Geer v. Connecticut which was a Commerce Clause case, they could prevent the killing of those birds for the purpose of taking them out of state.
Speaker: They could be then anybody killing them for the purpose of taking them out of state.
Whitehead: That is correct. The village in McCready v. Virginia…
Speaker: But they did not attempt to keep the nonresidents from killing them?
Whitehead: No the statute prohibited the killing of game for the purpose of taking them out of state. However in McCready v. Virginia, Virginia prohibited nonresidents from taking oysters within the state’s waters. The court held that the state owned those oysters and the right of assistance to take them was a property right and not a privilege or immunity of citizenship.
Speaker: So that you feel that McCready and Toomer are reconcilable completely?
Whitehead: Even at the time the cases were decided, they were irreconcilable in this respect. Toomer found a distinction between migratory and stationary animals, which the McCready court did not find. Although the animals involved in McCready were stationary, the court there used language, which clearly indicated the court view that free swimming fish were also capable of ownership by the state. Of course they are not able to be reduced by possession but the ownership is similar to the ownership, which a person who holds private property has and the animals found on that property, he can exclude others from coming on to the property to take the animals located on.
Speaker: State owned parks maybe restricted to citizen users.
Whitehead: Well, if you are talking about using it in terms of just going on to the park, I am not sure that we are arguing that the law goes that far.
Speaker: Why wouldn’t you, perhaps?
Whitehead: Because it does not impinge upon the proprietary interest which the state holds and…
Speaker: What wares them out?
Whitehead: Pardon me.
Speaker: It wares them out. The facilities on them have to be replaced more often if they are used twice as much.
Whitehead: There is some difficult line drawing there, we would...
Speaker: Well, what if the state cannot do it, what would you say the constitutional reason would be?
Whitehead: If the state could not prohibit, it would have to come under the Equal Protection Clause and not the Privileges and Immunities Clause.
Speaker: Why is that?
Whitehead: Because the Privileges and Immunities Clause does not protect proprietary rights, merely privileges or immunities of citizenship. The Equal Protection Clause is not concerned with simply proprietary but privileges and immunities to citizenship that extends to all kinds of rights. We would therefore submit that neither of the premises underlying Toomer has common strength. Accordingly, Toomer itself should not be deemed controlling of this case on the basis of its prior decisions, the court should rule that Chapter 35 is constitutional.
Speaker: Mr. Whitehead, could I just ask you a question about your basic theory? As I understand here, the fish are owned by the state of Massachusetts before they reduce the possession and some individuals but not others have a right to reduce them to possession.
Whitehead: That is correct.
Speaker: Which individuals may reduce fish to possession?
Whitehead: It would be the citizens of Massachusetts.
Speaker: And what gives them that right, their citizenship, is it a privilege of their citizenship that gives them that right?
Whitehead: No, that fact that as citizens and therefore residents of Massachusetts, they --
Speaker: Well, do they have to be resident citizens?
Whitehead: Well they would not be citizens if they were not residents.
Speaker: Is that always true, a citizen of Massachusetts could not reside temporarily across the borders?
Whitehead: Oh temporarily he could reside across the border but his legal residence would have to be in Massachusetts.
Speaker: But it is his citizenship which gives him the privilege of taking this fish for himself.
Whitehead: Well, it is both his citizenship and the fact that as a citizen, he possesses a property interest along with all the other citizens in the resource. I am saying if –
Speaker: Yes, but say, one fish is swimming along, he has only a very fractional interest in it, then if he catches it, he has got the whole fish?
Whitehead: That is correct.
Speaker: Now, what gives him the privilege to do that, it is his privilege of his citizenship, I take it.
Whitehead: There is one step in between. As a citizen, he is the owner of the fish and therefore it is his.
Speaker: He is the owner of the piece of the fish, he is not owner of the whole fish.
Whitehead: That is correct.
Speaker: But what gives him the right to take the whole fish? Is it not that it is a privilege of his citizenship?
Whitehead: I think not, Your Honor. I think that it is a fact that all the citizens of Massachusetts, all possess an equal ownership interest and the right to take all of the fish.
Speaker: Do you mean that the state could not open it up to non citizens?
Whitehead: It could open it up to non citizens.
Speaker: Well, they would be taking the citizen’s property.
Whitehead: The state has to exercise the property right or it holds the property right and trust for the citizens.
Speaker: So it legislates. For whom does it reserve the fishery?
Whitehead: It reserves it for the benefit of the citizens.
Speaker: And so it is, as Brother Stevens says, an incident to a citizenship. Right under the statute, it is an incident to a citizenship.
Whitehead: The citizens, because they are owners of the property.
Speaker: Well it is because they are under the state; the fishery is reserved to them by the statute. That is the class that has defined, who are privileged to fish -- citizens, and hence it is a function of a citizenship.
Whitehead: I think not, Your Honor, it is a function of their property and it is coincidental but those who have the property interest, they are also citizens. That is why they have the property interest.
Speaker: And yet the state could give it away for.
Whitehead: They give it away if they found that it was in the interest of those citizens in their collective capacity to in fact give this fish away.
Speaker: But the citizen loses its interest once the fish is out of the water.
Whitehead: That is correct; it is reduced to private property and the collective ownership of the state ceases at that point, all the state has is a police power over the fish.
Speaker: And he is free to take it out of the state?
Whitehead: That is correct.
Speaker: In common terms?
Whitehead: That is correct. We are not saying here that Massachusetts has attempted to restrict the use of the resource once it has been taken to the borders of the state, rather it is restricted to the residents, the right to take that resource in the first instance.
Speaker: How do you get the property providing the fishes in there, if the fishes over the Rhode Island are not your property?
Whitehead: That is correct.
Speaker: So it is only your property when it is visiting?
Whitehead: That is correct.
Speaker: It is a visiting property.
Whitehead: It could be characterized --
Speaker: Now you see it and now you don’t.
Whitehead: That is correct. That principle has its roots in common law and the rights of the private property, when the animal is found on his property. You can call it qualified property interest.
Speaker: Mr. Whitehead, does your position depend on the Submerged Lands Act?
Whitehead: It does in fact -- we need the Submerged Lands Act to obviate one of the two grounds on which Toomer was based.
Speaker: As I read in his dissent that he relied almost exclusively on that.
Whitehead: That is correct. He as we felt that aside from the fact that Congress had conveyed the resources of the marginal sea to the states and therefore obviated the marginal sea tide water distinction. The fact that Congress had drawn no distinction between migratory and stationary animals was a strong indication that no such distinction should in fact be drawn.
Speaker: But if that act had not been passed, do you still think that Chapter 35 would be valid?
Whitehead: Chapter 35 would be unconstitutional then.
Speaker: How would you avoid Toomer then?
Whitehead: Pardon me.
Speaker: How would you get around Toomer?
Whitehead: We could not avoid Toomer in that case because the states would have no proprietary interest in the three-mile belt.
Speaker: So absent the Federal Act, we would have to over rule, Toomer to support your position.
Whitehead: I think absent the Federal Act, you would have not to only to over rule Toomer but the cases on which Toomer was based, primarily United States v. California which was the initial case, which held that the Federal government possesses paramount control of the resources of the marginal sea. So you have to go one step back.
Speaker: The Submerged Lands Act did in fact over rule United States against California so far as land within the three-mile land.
Whitehead: I am not sure, I would characterize it as over ruling, US v. California. Congress in the Submerged Lands Act exercised the rights, which United States v. California had confirmed that it possessed.
Speaker: It altered the ownership relationship.
Whitehead: That is correct.
Speaker: But the court said -- what did Toomer say? Toomer said no one owns the fish?
Whitehead: Toomer criticized the ownership theory but it in fact did not over rule McCready v. Virginia, which is the primary case articulating the ownership principle.
Speaker: I do not suppose that the Congress could grant something that it did not have.
Whitehead: That is correct.
Speaker: So you must say that Congress owned the fish or that United States owned the fish.
Whitehead: That is correct and there was language in Toomer, which is inconsistent with that. A language which says that migratory animals are inherently incapable of being owned, we would assert that that language contradicts earlier decisions of the court and that fact, coupled with the fact the Congress itself after careful inquiry determine that there should be no distinction between migratory and stationary animals.
Speaker: Do you think that Congress is essentially in the Submerged Land Act was asserting a claim of ownership that Toomer said it did not have?
Whitehead: The toomer called them to question but McCready v. Virginia and other cases confirmed that it had…
Speaker: Older cases?
Whitehead: That is correct.
Speaker: Well, do you think that Toomer would stand for the proposition that neither the state nor the federal government together possessed ownership?
Whitehead: On the basis of the non migratory distinction, I suppose it could be argued that the federal government did not possess ownership of the migratory fish in the marginal sea.
Speaker: Do you think that Toomer would have said that if the Federal Government and the state governments had gone together and banned foreign fishing within the three mile limit, that law would be banned?
Whitehead: No, that kind of statute could be enacted under powers apart from the rights derived from property, it could be enacted by the states under the police power, or by Congress under a variety of powers, particularly the Commerce Clause, Treaty Clause, and Property Clause accordingly because we submit Toomer as no longer good law. We ask that Chapter 35 be held constitutional and that the decision of the Supreme Judicial Court be vacated and the case be remanded for further consideration of the other claims raised by Mr. Westcott.
Warren E. Burger: Very well Mr. Whitehead. Mr. Vetter?
Vetter: Mr. Chief Justice, and may it please the court. I represent Mr. Westcott in this case who as you already know was a Rhode Island fisherman, fishing out of Point Judith. The gist of my argument is that he Toomer and Whitsel is still a good law, but the principles underlying Toomer and Whitsel are still valid principles that to resurrect the special public interest doctrine that my brother has argued about would be a giant step backwards and that the states can achieve anything that they legitimately should be able to achieve under the police power. I should emphasize that the fish that we are dealing with in this case are migratory fish that was stipulated in the record below. The Privileges and Immunities Clause, the gist of it as we see it is, to bar a state from discriminating against a citizen of another state solely or substantially on the basis of non-citizenship. It does not bar it absolutely but when there is a discrimination, this court has said that the aliens or the non-citizens must be the peculiar source of the evil at which the statute is aimed. The purpose of the Privileges and Immunities Clause, I think can be summed up by saying, it is to protect among other things common callings and in one of the earlier cases, Ward v. Maryland, this court said that one of the purposes is to allow a citizen of state A to do business and state B on substantially the same grounds as the citizen of state B. Now as we see Massachusetts’ position here...
Speaker: Do you think that includes doing business with the property of the state? Let us just assume for the moment that a state does put out bits for timber cutting. Do you think it may confine those invitations to the state to the citizens?
Vetter: No sir, I do not think they could and I think that they...
Speaker: So that is included in your statement?
Vetter: Yes it is. As we view Massachusetts’s position, they do not really argue that the statute discriminates against non citizenship.
Speaker: Mr. Vetter can I go back to Justice White’s question, didn’t our Alexandria Scrap decision last Spring, indicate that the state of Maryland was free to, in a purely proprietary capacity to favor Maryland. Scrap people over non Maryland scrap people?
Vetter: Your Honor, I confess that I am not acquainted with that case but I would submit that the principles that we are dealing with here -- principle based on property. It is not the basis for exercising a discrimination. The problem is we see it with the special public interest doctrine is, that it leads to all sorts of consequences which I think, or we submit would be untoward consequences. For example, in July of last year, this court decided Kleppe v. New Mexico, involving the Wild and Free-Roaming Horses and Burros Act. That statute was passed by the government to protect those animals on federal lands. New Mexico went in to see some of those animals. The Federal Government agency asked, could they be returned. The State of New Mexico commenced an action in the Federal District Court and that court held on the basis of the McCready case that the federal statute was unconstitutional to special public interest doctrine. They said that the state of New Mexico had an ownership interests in these beasts. Well, the court reversed and in its reversal, it pointed out that the state has power over wild gain and its wild resources based on the police power but that those powers have to be subject to the paramount powers of the Federal Constitution and it cited several cases Missouri v. Holland, which is a very important case in this field. The Hot Case and also Toomer v. Whitsel, which of course involves the Privileges and Immunities Clause.
Speaker: But those burrows were in federal land, weren’t they?
Vetter: Yes sir, they were, but the point that I am making here is, and while it may be deemed dictum, the court included within the litany of cases of paramount federal powers Toomer v. Whitsel which is the key case, which we are dealing with on this argument today. In Toomer v. Whitsel, dealt with the privileges and immunities clause and did not deal with federal lands, it did not deal with the property clause of the United States Constitution. In other words, we cite that in our brief as indicative that Toomer v. Whitsel is still an alive and vital case.
Speaker: Missouri against Holland involved the Federal Migratory Birds Act and the Treaty Power --
Vetter: Yes sir it did.
Speaker: I remember.
Speaker: You can take (Inaudible) or would not take it at all?
Vetter: Yes sir, I admit that it was dictum but nonetheless it was included within the thinking of this court. We submit as an example of the paramount federal power to which the state must exercise its power. Any event, as we see Massachusetts’s position, they do not point to aliens as a particular source of evil and frankly, as we see it, they do not even try to justify the statute as a conservation statute and as you have heard in their argument that merely says that the statute -- they in effect say that the clause is inapplicable because of the special interest doctrine of McCready v. Virginia as we see the structure of their argument. Now, that doctrine as my brother pointed out -- that doctrine states that the citizens own the wild life of the state in common, that the State Government exercises that ownership as sort of a trustee, and that the State Government in the exercise of that ownership can discriminate against non citizens, namely those who do not have that beneficial interest. And then it goes on to say that the right to hunt and fish of the state citizen derives from ownership and not citizenship and so, consequently that is not a privilege of citizenship guaranteed to citizens of other states. I believe Justice White, you were getting at a point, which seems germane to me and that is that in the McCready Case, the court points out that the ownership derives really from two sources. It derives from the citizenship of the state as a state citizen and he gets his ownership by virtue of being a citizen. So consequently, I would be so bold as to say that there maybe a fallacy in the McCready reading because if that is true, obviously then, the Privileges and Immunities Clause would apply even in the McCready situation. The problem of course, with relying on the McCready Case is that Toomer v. Whitsel stands in the way like a huge roadblock. Now, I think it is important to know the factual situation which confronted the court when that case was decided. The shrimp fishery, which was off to Southern Coast was not a shrimp fishery that was restricted within the territorial waters of any state, it was a giant fish shrimpery and the shrimp would migrate South and the commercial shrimp fishermen would start up the Northern part of their Shrimp fishery and follow them right down to Florida. South Carolina passed a statute which restricted fishing to residents of South Carolina within the territorial seas of South Carolina. The consequence was, that you had the shrimp fishery partitioned along these state lines and what in effect you had as I described in our brief is a feudal situation. So, that was the situation that the court faced. The court was well aware of the McCready case of course, because South Carolina relied upon it exclusively. And the court characterized the McCready case as the sole case using the special public interest doctrine to justify discrimination against commercial hunting and fishing by non citizens, absent persuasive independent reasons to support that discrimination. It then distinguished McCready on the two grounds already mentioned. McCready dealt with stationary fish in tidal waters and Toomer dealt with migratory fish in the marginal sea. It characterized McCready as the sole exception to the general rule and Toomer is a case that on its facts did not fall within that exception. And then it said that the very facts distinguishing Toomer made the McCready case a very weak prop for South Carolina to rely upon because -- and then it gets to the crucial point that is very doubtful whether migratory fish can be owned citing the illustrious case of Missouri v. Holland where the court said that was the treaty case involving the migratory birds. “To put the claim of the state upon title is to lean upon a slender reed. Wild birds are not on the possession of anyone and possession is the beginning of ownership” and so consequently, on that basis and also on the basis that the state did not own the three-mile belt. Although the court recognized that it could regulate within the three-mile belt, the court said that the McCready Case did not apply and then it came to some other very seminal language, which I should like to quote. The court said “The whole ownership theory in fact is now generally regarded as what a fiction expressive in legal shorthand of the importance to its people but the state have power to preserve and regulate the exploitation of an important resource and there is no necessary conflict between that vital policy consideration and the constitutional command that the state exercise that power, like its other powers, so as not to discriminate without reason against citizens of other states.” And so consequently...
Speaker: Mr. Vetter would your analysis carry over to wild animals on land?
Vetter: Yes sir, I believe that would and as a matter of fact, there are a number of state cases, which are cited in our brief where state courts have adopted that analysis. In a nutshell, nowadays, the modern management tool is the police power. The states can do everything that they need to control their resources under the police power and the police power is exercised consonant with...
Speaker: Well, but the police power is subject to the Privileges And Immunities Clause.
Vetter: Yes sir it is, and that is the very point.
Speaker: Well, so how does the modern management tool of the police power solve any of the problems that the states see as confronting them?
Vetter: The police power, Your Honor, gives us the state, as we submit -- all the power it needs to conserve its natural resources. However, the police power is obviously subject to the Equal Protection Clause and the Privileges and Immunities Clause and our position is that they can only conserve their resources consummate with the commands of those clauses. In other words, they cannot invidiously discriminate against citizens of other states, resident aliens, or what have you.
Speaker: What if a state wants a $500.00 license from a non resident to hunt antelope and a $10.00 license from residents to hunt antelope, any constitutional objection to that?
Vetter: Yes there would be. I think that that statute would be unconstitutional or put it this way, I think the court would subject that statute to close scrutiny. Unless it could be shown that there is some justification for the added expense. It might be much more expensive for example to monitor, to police out-state residents from hunting and that point is made clear in the Toomer Case. It does not absolutely bar discrimination. For example, the Toomer case, the court in the Toomer Case explicitly says “It is possible for example, if South Carolina could show that is was more expensive to watch over the fishing boats of nonresidents that they could have a higher fee for --
Speaker: That puts it just on the reasoning than of the inspection fee cases that you can charge if it costs more.
Vetter: Essentially, that is the type of reasoning that I think underlies the discrimination which would be allowable in this area.
Speaker: Well, what if the State of Massachusetts determined that it could only issue fishing licenses for this particular kind of fish, because there are just weren’t many running. Only 50 fishermen had much of a chance of catching them, now do you think it could reserve, let us say 40 of those for residents of Massachusetts?
Vetter: I would submit not, -- we would have to do it on a lottery basis or some such basis where by residents of Rhode Island in New Hampshire, which are just contiguous states would have --
Speaker: Well, and presumably, residents of Oregon or Nevada or Minnesota too.
Vetter: I would think that they could, yes sir. I think that is the purport of the Privileges and Immunities Clause.
Speaker: And so, if all 50 licenses ended up in the hands of nonresidents, there is nothing Massachusetts can do about?
Vetter: I think the logic of my position carries me that far. But I think the point of the matter is though is that, we may be mixing apples and oranges again because I think it is fair to say or at least, I think, it is fair to say that this is not a conservation statute. It is a stature which is really designed to monopolize that resource for Massachusetts’s residents and I am not so sure that they can do that under the constitution.
Speaker: I thought I was sure they can.
Vetter: I am sure that they can, yes sir.
Speaker: Does your view stand primarily on the fact that you were dealing with migratory fish? Suppose you had fish in an inland pond, let us say Bass or Trent and the state exacted a much higher license fee for nonresidents to fish in those inland lakes or ponds, and that would be a conservation move perhaps -- How would you view that?
Vetter: It is a much more difficult case. I cannot say that the states, the Shockwell (ph) Case, which is cited in my brief, it is a state court case, out of Oregon, out of Wyoming, adopted the reasoning that I am adopting here that they cannot invidiously discriminate and I think that the logic of my reasoning takes me to say that they would not be able to discriminate against nonresidents unless there was some reason for the discrimination. In other words, they could not merely say that not merely say that nonresidents could not come in or set a prohibitory license fee, merely on the basis of non residency or lack of state citizenship.
Speaker: You are not limiting this concept to the migratory propensities of the wild life, are you? In other words, in a state like Minnesota or Wisconsin, you have practically nothing except domestic indigenous fish, they do not migrate anywhere. But they charge, a great deal more for an out of state license. Do you say as long as that license is not so great disparity as to be obviously discriminatory or penalizing in its nature, that it is alright to have this.
Vetter: Yes sir, it is my position.
Speaker: I misunderstood you, I thought you said that, a differential in the -- the price of a license could be constitutionally justified only if you could show that it would cost that much more to administer to enforce the --
Vetter: I use that as an example of the type of discrimination which would be allowable. Because it seems that if you do not have some sort of independent reason such as that as the Toomer case has, you are thrown automatically back on the fact that the discrimination hinging entirely on non-citizenship, which I believe, not only Toomer v. Whitsel but any number of other cases have said, it is not supported by the constitution.
Speaker: Mr. Vetter, suppose we have a big lake in Massachusetts with a whole lot of Bass, as my brother Powell is talking about and the state says, we do not get out of the Bass business and therefore all of the citizens of the state take all of the fish they want but though nonresidents. Is that alright? Because I warn you, if you don’t – if that is alright, then if the state said, I am going to give all my citizen a 100 bucks, then all of the farmers could come in and get 100 bucks.
Vetter: I think it is fair to say that there is a certain area --a gray area that we would like to call it part of the -- certainly the thinking of Toomer v. Whitsel and Missouri v. Holland and Magee v. Gretson, and so on and so forth, these other cases is that that you cannot own something which is migratory and, and flying or swimming in the marginal sea. Now, I think it is possible that a court could, if it wanted to is draw a distinction because you really do not face the same sort of overriding problems with Bass in an inland lake as you do with commercial fisheries in the marginal sea. I think there would be inconsistencies because that would have to be pitched. Let me put it this way, I think that, if that were pitched on a property right, such as Massachusetts argues for in this case, I think it would be difficult to justify it. I think if we pitched on the police power or some other power and they were adequate grounds for the discrimination but I think it would be all right.
Speaker: Scariati’s case involved, sponge fishing.
Vetter: Yes sir.
Speaker: The effort of Florida to control that, within its territorial waters, based upon its police power?
Vetter: Yes sir. I believe, I cited that in my brief. The police power was looked to as the source of the power.
Speaker: And upheld wasn’t it?
Vetter: And upheld, yes sir.
Speaker: What is so magic about the, calling something as the police power, a state, and the exercise of any of its powers is limited by the federal constitution?
Vetter: Yes sir.
Speaker: It does not change the matter if all of the state’s police power..
Vetter: No I don’t, I think the reason and as I see the reason for it is simply this. That when you put it on a property right, you have, bringing with it all sorts of all learning through the centuries of the common law.
Speaker: An absolutist right to deal with wealth.
Vetter: It is an absolutist point of view and I think the McCready Case and the argument of my brother here is an indication of where that leads you. And that is one of the points that I should like to make here and that is, that we do not really contend -- obviously we do not contend that the states should not have power to regulate its fishing gain, we do.
Speaker: You do concede this power?
Vetter: We do concede that, but that power has to be exercised in an even handed manner and the problem is that when you pitch that power on ownership, you end up with the problems that we have here today because of the type of thinking -- the absolutist’s type of thinking that the old land law carries with it.
Speaker: On the other hand, the problem with your submission is, is how you even handed this must be. Your submission leads logically to the conclusion, I suppose, that a state simply could not charge a differential and price between a resident and a non resident fishing license for example, and it is inland waters. Unless, it could show that it costs somehow more to enforce its fish laws against nonresidents than it does against residents.
Vetter: Well, the answer to that is yes, but they would want to go on to say one other thing and that is, that there can be other basis for the discrimination because in the language of Toomer, is that the aliens are the peculiar source of the evil, that which the statute has aimed. I imagine situations where there might be a huge influx of out of state that is up in Vermont to deplete the resource and they might then be able to base it on that.
Speaker: That might be the case from what I have heard with respect to peasants in the Dakotas. I am not a peasant hunter but I understand there are only two or three states in the union that have an abundance of peasants and that nonresidents that shall address substantial fee is otherwise, that the tens of thousands of people in land to shoot the peasants out.
Vetter: That is the type of thinking which I think would permit or sustain the discrimination.
Speaker: Mr. Vetter, did I understand here to draw a distinction between possibly inland lakes a little while ago, I take it you would make the same argument with respect to boundary river waters and certainly the great lakes, would you not?
Vetter: Yes sir, I would.
Speaker: Sometimes the East Coast forgets those things.
Vetter: I think it would be the same argument. There is one point that I would just like to touch upon, and that is the effect of the Submerged Lands Act. Our view of that act is that it merely confirmed in the states whatever rights the states had before and which essentially was a management power and at that any event, if migratory fish, if wild animals cannot be owned, the federal government by an act could not say, or give title to those animals. And so consequently, we do not think that the Submerged Lands Act, has any bearing what so ever on Toomer v. Whitsel and so that the language in the Submerged Lands Act, referring to ownership of fish is really again the language of Toomer v. Whitsel but it is a legal shorthand for the power to manage.
Speaker: I will accept the Toomer opinion and correct me if I am mistaken; did rely on the California Case, didn’t it?
Vetter: Yes sir it did.
Speaker: And the California Case was a turned around, 180 degrees by the Submerged Lands Act and to that extent the one of the foundations for the Toomer opinion was removed.
Vetter: This court in and Mann case, a recent decision cited in my brief, points out that the Submerged Lands Act did not over rule the California Case.
Speaker: No but it did turn it around 180 degrees.
Vetter: It did turn it around, yes sir.
Speaker: And what was held in the California case to belong to the Federal Government under the Submerged Lands Act now belongs to the states, i.e. the three-mile belt.
Vetter: At the very most, it would cut out that one segment of Toomer, the three-mile belt ownership but it would not cut out the other argument that you can own wild birds and fish. And one further point and that in of the addendum to our brief, we cite certain legislative history to indicate that Congress was well aware of Toomer v. Whitsel when it passed the Submerged Lands Act and as a matter of fact said an amendment, which would be the gist of the argument that we are making now was entirely superfluous in lieu of that act.
Speaker: Mr. Vetter, do you rely at all on the distinction between two kinds of ownership that are discussed in the Toomer Case as a Footnote on the difference between dominium and imperium. Do you rely on that at all?
Vetter: I cited in my brief and it seems to me what was meant by that of, by that Footnote was very simply that very early in the game, there was a confusion made. The gist of the Footnote is that, way back in the old days, Roman days perhaps, control of wild game was based on imperium, which was state power than dominium, which is ownership. And to that extent, I would certainly say that we do rely on it because of this imperium, I think it goes into the police power and not into the ownership concept and that is really what I have been arguing this morning or this afternoon.
Speaker: Well, I suppose, one might argue that if that Footnote is read to mean that ownership in the McCready case as in the imperium or regulatory sense, one could also construe ownership in the statute changing the California result in the same sense.
Vetter: Finally on policy grounds, to reinstate McCready we submit would reinstate the Feudal situation that we have in the marginal sea of the head and the marginal sea in that case. Migratory fish do not know any boundaries, it would be very difficult for commercial fishermen to carry on your calling. If all of a sudden they had to stop them, turn away when they are dragging for fish because they are reaching a boundary. States with small boundaries like New Hampshire, for example, up where I live would have a very limited area in which to fish, because they just obviously would not own as much of the marginal sea. The special public interest doctrine would also be a step backwards because it would lead to such situations as we had in the Kleppe Case, which I talked about earlier. And quite frankly, it seems to me that this doctrine that Massachusetts would argue for could really lead to the depletion of natural resources because what is really to say that a state is necessarily going to conserve its resources. And certainly as we see a lot of our problems in the marginal sea and out of the 200 mile limit right now, we are beginning to realize that there has to be a broader control. If within the three mile limit the states had this exclusive powers, we really cannot say what might happen and so, in conclusion we submit that the court should affirm the decision of the Supreme Judicial Court.
Speaker: Thank you Mr. Vetter, you have --.
Warren E. Burger: No, I guess we are all used up here. Thank you gentlemen. The case is submitted.


Warren E. Burger: We’ll hear arguments next in Number 154, James against Valtierra. Mr. Atkinson I think you may proceed now whenever you’re ready.
Donald C. Atkinson: Mr. Chief Justice and may it please the Court. This matter comes to the Court on appeal from a three-judge court sitting in California United States District Court, Northern District of California. The matter comes up from a summary judgment. The summary was in two parts. The first part was a declaratory judgment ruling at Article XXXIV of the State of California constitution was violative of the Fourteenth Amendment, Equal Protection clause. The second part was a declaratory judgment -- pardon me, in permanent injunction against the defendants in the case of availing themselves or relying on the provisions Article XXXIV as a reason for not proceeding with the acquisition construction or development of low rent housing. The Supreme Court has jurisdiction of this case under 28 U.S.C. 1253 in appeal from a permanent injunction by a three-judge court against the enforcement of or obedience to the provisions of a State constitution of provision. The cases before the Court are really two. The first is James versus Valtierra and the second is Haze versus The Housing Authority. In the first case, the plaintiffs Valtierre and other similarly situated on behalf of the class, people who were eligible for a low rent housing brought an action against the members of the city council of the City San Jose to have the Article XXXIV rule to be unconstitutional. In Haze versus housing authority and also in that action that joined as defendants where the members of the housing authority of the City of San Jose. In Haze versus the Housing Authority plaintiffs, plaintiff Gutsy Haze (ph) and other similarly situated brought the same type of action against the housing authority of San Mateo County. In the James case, an answer was filed, in the Haze case an answer was not filed. The actions were consolidated for purposes of argument and the decision obtains as to both cases. The provisions of Article XXXIV which are at issue before the Court basically provide that no state public body shall acquire, construct or develop low rent housing unless the majority of the people, the electors qualify to vote in the locality in which the low rent housing is to be constructed by majority vote in favor of such low rent housing.
Harry A. Blackmun: Mr. Atkinson.
Donald C. Atkinson: Yes.
Harry A. Blackmun: What in your view is the purpose of Article XXXIV?
Donald C. Atkinson: The purpose of Article XXXIV Justice Blackmun was to fill a gap in the referendum procedure in California. Under Article 4 of the State of California constitution, only legislative actions were referendable. An opinion of the State Supreme Court, Housing Authority versus the Superior Court of Humble County in 1950 ruled that actions of a housing authority operating under the low rent housing procedure were administrative rather than legislative in character and therefore could not be reached by a referendum. Shortly thereafter in 1950, proposition 10 was placed before the voters of the State of California. That proposition is and was adopted as Article XXXIV so that in response to your question, the immediate purpose of Article XXXIV was to protect the people, to give the people the right to determine whether or not they wanted to extend low rent housing to the people in their particular area.
Byron R. White: But it isn’t Article XXXIV is somewhat different from the normal referendum provisions?
Donald C. Atkinson: Mr. Justice White it depends on what referendum procedure you were talking about.
Byron R. White: Well you said it was filled a gap in the referendum --
Donald C. Atkinson: Yes, under that type -- since that was the original type of referendum that the people thought they had in that area. It was to fill that gap. However I might point out --
Byron R. White: Well it did something more than that, isn’t it?
Donald C. Atkinson: Well, it’s a prior automatic referendum that’s what the -- you’re referring too. As distinguished --
Byron R. White: Every legislative action in California is not subject to referendum I wouldn’t say it isn’t? I mean automatic referendum. [Voice Overlap] ask for the legislature that a counsel is --
Donald C. Atkinson: No, no, basically most legislative acts are subject to referendum by petition.
Byron R. White: That’s right.
Donald C. Atkinson: A subsequent --
Byron R. White: This one doesn’t work that way, isn’t it?
Donald C. Atkinson: No it does not.
Byron R. White: This is automatic?
Donald C. Atkinson: That’s correct.
Byron R. White: Now with -- if the general referendum provision had been applicable, I don’t suppose 34 would have been passed, is that your point?
Donald C. Atkinson: I wouldn’t think so, there wouldn’t have been any reason for --
Byron R. White: What would be the purpose of making it automatic instead of a subject to petition?
Donald C. Atkinson: Of course I can’t really answer that question because I had nothing whatsoever to do with drafting the article. I can only surmise that the people thought that this was a legitimate approach to protect their rights in a referendum area and I was attempting to point out. There are other types of referenda in California which are prior automatic referenda. There are some, the initiative measure, there are certain type of annexation and consolidation procedures. The city charter of San Jose with which I’m quite acquainted has a provision for a prior automatic referendum of the area of Sailing Parks. And there are other types of prior automatic referenda, but I don’t feel that merely because we have a prior automatic referenda that that of itself lends any odious color to the procedure. The people as long as they’re dealing in an area where they have the right to reserve something, as long they treat the area that they reserve uniformly and without treating any other similar area in a different manner. I feel there’s no unconstitutional treatment. The classification here in Article XXXIV is precisely limited to one small area, low rent housing. It deals with that area because I point it out before that was the area that the Supreme Court of California ruled was not referendable. So that it certainly made sense for the people to strike out and to pick out that precise area as the subject of their referenda procedure. The proposition 10 itself when it was passed, the arguments pro and con are absolutely neutral. They’re all directed to the right of the people to reserve their voice in area where they have a concern. There’s no illusion to race, there’s no illusion to a property per se.
Speaker: Is this issue ever gone through interstate court system?
Donald C. Atkinson: No, Mr. Justice Harlan it has not. It’s our contention that the article is -- as I pointed out before, fills the gap that it’s not an unconstitutional classification. It’s not unconstitutional on its face, its not unconstitutional as applied, it’s not a classification based on race nor color, and it does not violate the supremacy clause. In the first place, the article merely deals with low rent housing and nothing else. It treats everyone in the area of low rent housing the same. And as such, it meets the tests that have been uniformly laid down with reference to the test that the Court applies in determining whether or not state legislative action is violative of the Equal Protection clause. The case of the Hunter versus Erickson was cited as a precedent in the lower court. And I submit that Hunter versus Erickson on its facts is not this case at all. In Hunter versus Erickson, we were dealing with the situation where the people of Akron had a referendum procedure with right across the board. They also had a fear housing ordinance which had a procedure set up. People had been hired, categories had been established and it was actually under operation. The enactment of the referendum procedure in the Hunter case in effect, resented or repealed the existing low rent housing ordinance, fair housing ordinance and built a prior referendum procedure on top of a regular referendum procedure. So that in Hunter, it could not have been argued that there was -- that there was no referenda procedure available and that therefore a new referendum procedure was necessary. Secondly, the Court in Hunter specifically mentions the background of the referenda procedure. The fact that it repealed an existing fair housing ordinance, the fact it was racially motivated. In fact in the opinion, there are references that is inexplicitly racial classification. In fact Mr. Justice Harlan and Stewart as I recall in their concurring opinion indicated that the provision has the clear purpose of making it more difficult for racial and racial minorities, religious and racial minorities to achieve legislation that is in their interest. So, I submit that the case before you now is not the Hunter case and the Hunter case should be distinguished. And to apply the Hunter case here seems to me to be placing the Court as a super legislative body, second guessing the people in dealing in legislative areas, social concern areas that the Court in the Dandridge versus Williams said was their right.
Hugo L. Black: What you said about Reitman and Mulkey?
Donald C. Atkinson: Reitman and Mulkey was a case again where the State Supreme Court of California had indicated that we had racial discrimination here on a statewide basis. The state had entered the field. It had not only courage but actually almost put forth a racial discrimination. The Supreme Court as I recall in the Mulkey case took the finding of the California Supreme Court and made it its own and went on from there.
Speaker: Suppose this went through the states(Inaudible) the Supreme Court might state that about the statute?
Donald C. Atkinson: It’s certainly possible.
Speaker: It’s never been before?
Donald C. Atkinson: It’s never been before the California Supreme Court.
Speaker: Or in any California Courts?
Donald C. Atkinson: It’s never been in any California Court, that’s true. The -- as I indicated before, it’s not discriminatory on its face. There is no racial classification in the constitutional provision. Race is not even mentioned. The appellees here indicate well, we know as matter of fact that most of the poor people are black or Spanish speaking etcetera. I submit that this may or may not be true. However, this does not per se make a statute or a constitutional provision which affects a minority. It doesn’t make it into a racial classification. As matter of fact, I’m sure that we’ll find that as far as numbers go, there are more poor whites than poor blacks. But that really is not relevant, I don’t feel the issues here.
William H. Rehnquist: Mr. Atkinson, my recollection isn’t too certain but could (Inaudible) have said the same thing about proposition 14 in Reitman against Mulkey?
Donald C. Atkinson: Reitman versus --
William H. Rehnquist: And it didn’t seem to be racially motivated?
Donald C. Atkinson: Reitman versus Mulkey is quite distinguishable in this regard and very like Hunter. Reitman versus Mulkey again repealed a fair housing procedure, a non discriminatory procedure which had been setup in the State of California. The Court goes into the background and the purpose and certainly the Court was very, very interested in that just as it was in the Hunter case. There’s nothing of this sort in the case before Court now. There’s nothing in the arguments pro and con as I said before if it’s right into the context of the necessity of a referendum procedure. The only conceivable argument it seems to me that can be race against the constitutional (Inaudible) of 34, is a fact that it’s a prior automatic referendum as distinguished from a subsequent petition referendum. And I submit that that is not crucial because they’re both referendum procedures. This is an area where the state has a legitimate concern and the Court should not intrude its own judgment in place of the legitimate concerns of a state people.
William H. Rehnquist: What are the state interests involved here?
Donald C. Atkinson: The state interests here are both physical and the fact low rent housing per se maybe that. The physical considerations flow from the fact that under the low cost housing procedure, the local public body takes the property which is the low rent housing project of the tax rules in return for 10% of the rents. Now that means that also the people are required to provide certain municipal or county or what have you -- what ever level of Government that we’re dealing with services for the project, including possibly schools, parks, and the improvements of that nature which they wouldn’t normally have to provide if the low rent housing project did not go in a particular area. The other consideration is the fact that low rent housing is not a blessing right across the board. The experts in low rent housing disagree among themselves as to whether not as good or bad. They’re all kinds’ arguments about how large the housing should be, when it should be acquired constructed and developed. When it should be and questions of that nature. In fact, there has been some history here. I point out the housing project in Saint Louis which was an absolute fiasco. In the past, most of these housing projects have been mandate nature. They have let actually to internal segregation. They let to isolation, get a isolation and some of them have as I say fallen flat on their face. As I recall in Saint Louis, over 50% of that project is now vacant. Realizing that the people are only getting back 10% of the rents in return for taking property which might be extremely valuable in terms of tax return off the rules. If a projects fails, the people certainly should have the right to consider that aspect before they want a low cost housing project to go in anywhere. Because 10% of a project, 100% filled full, is certainly not the same as 10% of the rents of the project only 40% or 50% full.
Speaker: If the rent was 10%, then (Inaudible)
Donald C. Atkinson: There have been a -- I don’t have the exact number Justice Harlan but I will point this out. That brings up a very interesting area up for discussion. Actually, 34 has not been discriminatory as applied. As a matter of fact most of the elections have been voted in favor of the low rent housing. The reason that it’s even close in terms of units is because in Los Angeles as I recall in 1952, a 10,000 unit low cost housing project was turned down. But as I understand it, that was never resubmitted to the people. There’s nothing in 34 that prohibits low cost housing from going in. It merely requires a vote. And I submit that it’s any different from any type of vote, school bond or what have you. If that is turned down, the people still have the right to come back. The city council can again put up before the people and perhaps that’s a blessing. If there’s something wrong with the project that gives everybody an opportunity to come back and think about it. It may have been poorly planned, the education of the electorate may not have been proper. That people just -- that the proponents may not have done their homework. And I submit that it’s quite interesting that as I recall between 1968 and 1970, the percentage of referenda that had been approved are actually going up not down so that we are not dealing in an area where discrimination is running rampant. I also want to touch upon points that were brought up in the Appellees brief, they attempt to bring in this whole classification into invidious classification, suspect classification, classifications that are traditionally disfavored. And I submit that this is not the kind of a classification which fits any of those tests. Most of the cases were the -- the Harper case for example, which mentioned that wealth and race were suspect classifications. The question of wealth really was not relevant to that case at all. The only reason it was important was because people who were poor were being deprived of the right to vote. And the right to vote is a fundamentally constitutionally guaranteed right. And unless the Court here is willing to extend its tests of fundamentally guaranteed rights to low rent housing, I think it would be extremely dangerous to uphold the District Court in this area. Neither is this case, a criminal case where someone is asking for the right of a transcript on appeal or anything like that. I submit that this Article XXXIV is neutral in purpose, completely undiscriminatory in its face and as applied. And I submit that again that it would seem to me that if the Court launches out in this area and strikes down 34, it would seem rather difficult to determine where the line will be drawn. If a provisional constitutional provision like this can be stricken down by this Court, there’s no end to the intrusion of the judiciary into the legitimate concerns of legislative enactment of the people. So that again, I would submit that Article XXXIV should be deemed to be constitutional and that the decision of lower court be overturned.
Warren E. Burger: Thank you. Mr. Cox.
Archibald Cox: Mr. Chief Justice, may it please the Court. In the appellees briefs we’ve canvassed the number of grounds which we believe that Article XXXIV of the California constitution violates both the Fourteenth Amendment and the supremacy clause. In my oral argument, I intend to confine myself to the essence of our argument under the equal protection clause of the Fourteenth Amendment. And it very briefly is this, it’s that Article XXXIV violates the equal protection clause because it builds into the very structure of Government, of local Government in California an explicit discrimination against the poor. In the words of the statute against persons of low income who are defined, I should say of the constitution Article XXXIV, who are defined as persons whose income is insufficient to provide them with safe, decent and sanitary housing without overcrowding. The discrimination here as in Hunter against Erickson consists of putting the poor the disadvantaged class, putting before them a special obstacle which they must surmount in order to secure Government action in their behalf which faces no other group seeking Government action in its behalf. Hunter and Erickson held that that very kind of discrimination was unconstitutional where it ran against racial minorities. Our contention is, that it is equally unconstitutional where it runs explicitly against the poor and for the most part in practice also against racial minority.
Warren E. Burger: What would you say about the constitutional provision that provided that all public housing be submitted for a referendum?
Archibald Cox: Well, I think that it would -- I’m not quite sure Mr. Chief Justice what you mean by public housing if it said all --
Warren E. Burger: In the context subsidized by the Federal Government or --
Archibald Cox: If it said all subsidized housing by the federal or State Government. Then, I think we would have a somewhat different case because here there clearly is discrimination between subsidized, middle income and upper income housing which is subsidized by the Federal Government and low rental housing for the poor. But I’m not sure that there wouldn’t still be an argument that the poor who would be still the chief ones in need of housing and the chief beneficiaries of housing where the victims of a discrimination taking a somewhat broader universe and looking at kinds of local Government action more broadly as the Court did, indeed as all the justices did in Hunter and Erickson. But for our purposes, that case can be left to another day. Indeed, I think here and as I shall try to show a little farther on, whatever comparison you take, there is no neutral principle that will explain this discrimination.
Warren E. Burger: Would you realize that this hypothetical too, suppose the prohibition or the referendum requirement were to all multiple housing projects over 50 units.
Archibald Cox: I think you say zoning -- if there were -- let me change Your Honor’s example just a little bit because it -- when occurred that’s very likely. And that is if the zoning laws required that all housing above certain numbers of units be submitted the referendum, then we would have a different question, that would cover high rise apartments for middle income and well to do, and it would certainly be arguable that there was some neutral principles so I think that case is really very different from mine. I planned to develop the argument which I just get in four steps. The first is that Article XXXIV unquestionably I think erects a special obstacle in front of persons of low income in seeking to have their need for Government action to fulfill one of their greatest necessities. Having the Government act to fill it as compared with any other group, in order to get any housing project, public housing project under way in California quite apart from Article XXXIV, there must either have been or must be in the future of four principle steps. The first would be state legislation empowering the municipalities to accept the benefits of the Housing Act -- Federal Housing Act of 1937 and constituting local housing authorities, that step has been taken. The next step is the passage of a resolution by the County Government or the City Government as the case maybe, activating its housing authority and that step has been taken in both San Mateo County and in the City of San Jose, the two units involved in these cases. Then the third step is a preliminary application for funds to prepare the drawings, get the estimates, take the other steps to get a housing project underway. And that application must be approved by the board of supervisors for the county or by the city council for the city by resolution in the same manner as local government action is normally taken. And at that time too by resolution, the local subdivision must enter into an agreement of cooperation with the federal housing authority. So, you have municipal action according to the normal channels at that step. Then the fourth step of course, would be approving the plans for the project, approving the bonds and the various other mechanics to occurring it out. And I would emphasize that under California law, at that step again the local legislative body is required to approve the particular project. Now what the Article XXXIV does is to say in addition to those things, persons of low income who are seeking this kind of Government action in relief of their needs must go automatically to a referendum in which they secure popular approval of the project. This is an additional step to what would be required for any other effective kind of action by the local Government with the exception of issues of general revenue bonds which I’ll deal with a little later. The disadvantage which is expressly put on the poor by Article XXXIV is exactly the same I point out as the disadvantage under which the ordinance in Hunter and Erickson put those who were interested in fair housing legislation. In Akron as in San Jose there was a general provision for a referendum on petition of a stated number of citizens, but the charter amendment in the Akron case called for an automatic referendum. And the Court said there that the difference was enough to constitute a denial of equal protection. The differences here is exactly the same and we say that it too constitutes a denial of equal protection. Some argument is made in the briefs that was made a few minutes ago by counsel to the effect that Article 4 Section 1 of the California constitution provides for a referendum and thus there is no discrimination in this case. I find out that there are three major differences. First, Article 4 Section 1 does not provide for an automatic referendum, it provides for a referendum only on petition of a stated number of vote, 5% or 8% depending on the area we’re talking about. Second, the normal referendum in California comes after the subdivision or the legislator has acted. And the action is effective unless beat out by the voters. Here, the referendum must be held before anything effective can be done. And the third, and very important point is that Article XXXIV sets up a one way street or it may be used to defeat housing but it may never be used to obtain housing whereas the normal initiative in referendum are linked together and they may operate both ways. And we submit that these three differences make a clear cut disadvantage of such a kind as denies the equal protection of the law.
Warren E. Burger: With just -- how would you shape that kind of submission Mr. Cox, to have it a two way straight?
Archibald Cox: Well I would supposed -- we would have a very different case Mr. Chief Justice, if what Article XXXIV did was to subject public housing project to the normal initiative and referendum provisions of the California constitution. Did you ask how would I phrase the referendum?
Warren E. Burger: No, I was just trying to get the structure of the submission.
Archibald Cox: To the voters?
Warren E. Burger: To the voters, would it be before anything is done and would it be, if they approved it, then would it be mandatory that they -- that it be executed, I assume it?
Archibald Cox: I suppose, it would, yes. Shall the local housing authority, they authorized and directed to enter in the contracts with the Federal Government for such and such a number of units of housing.
Warren E. Burger: particular place?
Archibald Cox: And it could even say at a particular place or particular places since the housing is now in chiefly in smaller blocks then some of the housing projects that were described to us. I would point out in addition that this not only operates as a disadvantage against poor as in Hunter and Erickson but that there is no neutral principle which can be invoked to justify. As I said a moment ago, our argument does not challenge the right of the voters of California to reserve housing and other like questions for popular approval provided that it is done in accordance with some neutral principle and then one gets the problem with defining the class that I was discussing an answer to the Chief Justice’s question. All the important characteristics and consequences of publicly owned housing projects of a low cost variety other than the involvement of persons of low income attached to other species of Government action. California does not treat any of them as a cause for requiring an automatic referendum. For example, federal financing isn’t the reason for an automatic referendum in any number of context. Urban renewal projects, highways, airports, hospitals, other things of that kind,other than effect upon land use isn’t otherwise treated as a need for a referendum. Well, the zoning laws can be changed in ways that permit shopping centers, industrial plants, high rise apartments that will change the character of the land for generations. Indeed public ownership of projects that will affect the character of the land for generations is not generally treated as a reason for requiring mandatory popular approval. Again airports, sewage disposal plants, educational buildings and urban renewal are example. Nor can it be said fairly I think, that the possible increase demand for municipal services resulting from a publicly owned housing project is a neutral reason for requiring a referendum because there are plenty of other changes attendant upon municipal law which will create a need for additional services but they are not made the basis for a mandatory referendum, universities, medical complexes, sports stadiums, hospitals, universities and the like. The lessening of tax revenues is suggested by the appellants as a neutral principle which certainly not everything that takes land of the tax rows even for public ownership is submitted to referendum in California. In California there are only two so far as I know, kinds of mandatory referendum. One is a change in political boundaries or the structure of local Government. Well, Article XXXIV make such a change that the vote taken under it on a housing isn’t a vote on a change in the political structure or political boundaries. The other mandatory referendum is required in the case of the issuance of bonds which are -- or bonds of the state, county, city or other subdivision of the Government and which constitute an obligation paid out of general tax revenues. The California Supreme Court pointed out that there are two important differences here between general municipal obligations and the bonds of the housing authority. One is that the housing authorities bonds are not obligations of the city, county, state or other public subdivision as required in the California constitution. Second, they most clearly are not obligations that must be paid out of general tax revenues. The bonds are paid by the Federal Government and to some small extent by any surplus rents over cost of maintenance of the building, but usually they are not, so in fact the bonds are obligations to the Federal Government and are paid by the Federal Government. In sum I think the indisputable purpose and effect of Article XXXIV is to erect this special obstacle in the path of the poor when they seek Government action that does not confront any other group when it is seeking political or governmental action in its behalf. Our second main point which I’ll develop tomorrow is to emphasize that Article XXXIV builds it’s unique bias against the poor into the very structure of the political system, person of low income, seeking government assistance are told in effect, will you stand differently before your Government than anyone else stands when he is seeking Government assistance. I emphasize this because this is not a case let’s say like 3953 Williams where one was dealing with substantive Government policies and where the Court said there was greater latitude in social and economic matters. Here we’re dealing with the structure of Government itself.