Earl Warren: Number 435, Federal Trade Commission, Petitioner, versus National Casualty Company and Number 436, Federal Trade Commission versus the American Hospital and Life Insurance Company. Mr. Spritzer.
Ralph S. Spritzer: Mr. Chief Justice, may it please the Court. These two consolidated cases come here on the Government's petitions from decisions of the Sixth and Fifth Circuits respectively. The question which they present is whether the Federal Trade Commission, in circumstances which I shall detail later, has been ousted by the McCarran-Ferguson Act of its jurisdiction to issue cease-and-desist orders directed against unfair and deceptive advertising by insurance companies. Before I sketch the essential fact of these two cases, I should like to take a very few minutes to state by way of introduction that the Federal Trade Commission has been engaged these past several years in a very active campaign to eliminate from the channels of interstate commerce, false and deceptive advertising by companies selling hospital health and accident insurance. There have been some 41 cases brought, many of them against major companies and there are various stages of development, the two here today being, of course, the first to reach this Court. They are important in the Commission's view, these two cases, not only because they will determine in very large measure the phase of the remaining cases, but also because the general situation which has given rise to all of these 41 proceedings is one which the Commission deems of both pressing and truly national concern. And that is so because health, hospital and accident insurance have grown so spectacularly in recent years. It appears, for example, that more than two thirds of all persons in the United States now carry some form of hospitalization insurance. And these forms of insurance are sold in very great part by companies which do business on a broad frequently national scale. Some of them selling on a strictly mail order basis, others by other techniques. Moreover, these companies more and more have come to employ techniques of mass advertising, in some cases, by television and radio or through national periodicals. And as I suppose everyone who has a mailing address is where many of them has employed the techniques which the advertising business refers to as saturation mail advertising. It was a consequence of the -- in consequence of this that Mr. Howrey, the then Chairman of the Federal Trade Commission in 1955, advised the House Committee on Interstate and Foreign Commerce, and I quote his words, “There has been more public interest in our investigation of this advertising than any investigation the Commission has undertaken in my memory. We got not hundreds, but thousands of letters of complaint and the public interest in response have been overwhelming.”
Hugo L. Black: Are you reading from your brief?
Ralph S. Spritzer: No, I am reading from a House Report. It is not quoted in our brief, Your Honor -- Your Honor. And I might add that the Chairman of the Committee, before whom Mr. Howrey was appearing, then replied that it was the conviction of the Committee that there was a very great need for Federal Trade Commission action for the benefit of the companies insured. Now, with this background, I turn to the facts of these two particular cases. National, the respondent in 435, is incorporated and has its home office in Detroit, Michigan. It has 350 to 400 agents who are located in all 48 States in the District of Columbia and the territory of Hawaii. It's licensed to do business in all of those jurisdictions. It sent some brochures and advertising materials directly from Detroit to people throughout the country who maybe prospective buyers of insurance. However, the great mass of its material is apparently sent out in both ways to the agents and they, in turn, from such lists as they have or accumulated or accumulate, disseminate to the public. National's advertising materials challenged by the Federal Trade Commission complaint in this case had been in use for two years or more when the complaint was filed. The complaint charged and the Commission found that they were deceptive in some five major respects. I shall just quick and very briefly since, as I indicated in a moment, our issue here is jurisdictional rather than factual. The Commission charged and found that National's advertising first conveyed that the purchaser of the insurance could continue to renew this form of the insurance as he grew older and hence, obtained lifetime protection, whereas in fact, the policy has actually provided that they were cancellable at the option of the company. Two, the ads misrepresented the physical standards which the applicant for insurance had to meet. Three, they misrepresented that the insured receives broad and complete coverage in relation to hospitalization expenses and fixed -- sick benefits. There are being in fact numerous exceptions and qualifications in policies. Four, they misrepresented the amount of benefit payable in the event that the ensured had to go -- undergo surgery. Five, they misrepresented the duration of monthly sick benefits. American, the respondent in 436, is incorporated and has its home office in Texas, it does business selling health and accident insurance in 14 States where it -- it has applied since then, has agents. It sends its brochures and advertising materials similarly across state lines to its agents who in turn distribute to the public. I shan't detail the representations involved in the American case, suffice it that they also relate to the terms and conditions of the policy and to the coverage which they provided. The Commission in American's case found four out of five categories of violations charged has been proved. Now, as to the jurisdictional issue in these two cases, which is the only issue that the court below reached, let me note briefly one or two following additional facts. National alleged, and this is conceded, that the jurisdictions in which it does business with the exception of three States and the District Columbia have statutes, have state statutes under which the respective commissioners or departments of insurance might proceed, might issue cease-and-desist orders. There is no suggestion of a showing that any of these States have considered, ruled upon or proceeded in any way in relation to any of the practices.
Charles E. Whittaker: (Inaudible)
Ralph S. Spritzer: Yes, sir.
Charles E. Whittaker: (Inaudible)
Ralph S. Spritzer: They are what have been -- what has been called often times Little Federal Trade Commission Acts. And they authorized administrative agents, normally, the Commissioner of Insurance, to issue complaints, to conduct hearings and to enter cease-and-desist orders. They are patterned on the Federal Trade Commission Act. And 41 States, which have such statutes, are identical with one another and all of them speak of unfair practices and deceptive acts and practices in language virtually identical with the FTC Act.
Speaker: In -- in other -- in other words, you -- you -- if I understand you correctly, as to these States, if they chose to act, they could give identically the same relief that the Federal Trade Commission could give.
Ralph S. Spritzer: Within -- within their state boarder.
Speaker: Within their state boarder --
Ralph S. Spritzer: Yes.
Speaker: -- yes, exactly. That's --
Ralph S. Spritzer: Yes.
Speaker: -- that's the way I understood you.
Ralph S. Spritzer: That's right. There's no question about that.
Felix Frankfurter: Am I to --
Ralph S. Spritzer: Both parties are in agreement as to that.
Felix Frankfurter: -- am I to infer therefore that you are not suggesting, or neither suggesting the topic. You're not suggesting that if you prevail that the Federal Trade Commission Acts apply, then, the respective state law is dealing the same subject matter and then go to sleep.
Ralph S. Spritzer: Oh, no.
Felix Frankfurter: They're not --
Ralph S. Spritzer: The only question is --
Felix Frankfurter: There's no preemption (Voice Overlap) --
Ralph S. Spritzer: No. The -- the only question here, sir --
Felix Frankfurter: So that they were both whether -- you also --
Ralph S. Spritzer: That's correct --
Felix Frankfurter: All right.
Ralph S. Spritzer: -- Your Honor. The -- the States can certainly act in all events and the question is whether the federal arm is impotent in circumstances where the States have statutes but haven't undertaken any regulation in implementation of those statutes.
Speaker: (Inaudible)
Ralph S. Spritzer: I don't think it's a matter of inference. I think we -- that's clear from the record.
William O. Douglas: You are seeking here to -- authority to release, for the Federal Trade Commission to release interstate channels or communication. Is that what it confirms?
Ralph S. Spritzer: Yes, and certainly there are no --
William O. Douglas: These are the mails from the agencies of commerce?
Ralph S. Spritzer: No, it's not restricted to the mails.
William O. Douglas: Other agencies of commerce was restricted to mails and -- and other agencies.
Ralph S. Spritzer: Well, let -- may I -- I'd better clarify our point. Interstate commerce is clearly involved because all of these advertising materials emanate from the home offices and then go to agents who in turn distributes.
William O. Douglas: Are any of them radios, televisions?
Ralph S. Spritzer: No, not -- in these cases, we have the ads sent by mail or perhaps by railway express, the materials in any event across state lines to the agents who in turn distribute. In National, there may be some direct mailing from the home office, but we think that's -- that's immaterial for -- for our purposes. And our -- our basic position, which I shall be able to point out in a moment when I referred to the statutes is simply that so long as the State has not acted, there is no exclusion of the Federal Trade Commission's power, no divestiture of its power.
Charles E. Whittaker: When you say the State does not acted, you may not mean have not acted statutorily, you mean have not proceeded.
Ralph S. Spritzer: That is right.
Charles E. Whittaker: (Voice Overlap) --
Ralph S. Spritzer: I'm using action in the sense of active regulation as distinguished from the mere enactment of a statute which in this case is really an enabling act. The statute -- none of the state statutes, like the Federal Trade Commission Act, none of them contained any sanctions. They just give the authority to regulate to a Commission.
Charles E. Whittaker: Just likely Federal Trade.
Ralph S. Spritzer: That's right. And only if the administrative machinery is therefore brought into play and ultimately a cease-and-desist order issue is there any sanction because the cease-and-desist order, of course, operates only prospectively.
William O. Douglas: Do any of these cases involved sending through the mail by the home office --
Ralph S. Spritzer: Yes.
William O. Douglas: -- to -- to householders, policyholders or just all through agents?
Ralph S. Spritzer: In the National case, approximately 5% of the ads are sent out from the home office in Detroit, the other 95% --
Speaker: (Voice Overlap) --
Ralph S. Spritzer: -- directly to prospective purchasers of insurance. The balance of the material is sent across state lines to the agents who -- who engage in distribution of the materials in their respective local area.
Felix Frankfurter: May -- may I ask one more explicit matter? Could any State, if or -- as a commissioner, if any State brought proceedings under Little Federal Trade Commission Act --
Ralph S. Spritzer: Yes.
Felix Frankfurter: -- for the very abusive, which underlies the proceeding, if they have been met, if the state proceeding been met with the claim that it's -- that is interstate commerce and excluded from the state regulatory process?
Ralph S. Spritzer: Well, I can certainly conceive of cases in which that would be so.
Felix Frankfurter: (Voice Overlap) --
Ralph S. Spritzer: For example, the mail order insurance company, it might be that many States would be helpless to reach the material coming into play.
Felix Frankfurter: Well, I'm not talking about practically, but could -- could the State proceedings be challenged on the ground that it's beyond the power of the State to see what the transaction was sought to be, let's say, for Houston because they involved interstate transactions.
Ralph S. Spritzer: No. There is no question that the States on the facts of these cases --
Felix Frankfurter: Could proceed --
Ralph S. Spritzer: -- could proceed and --
Felix Frankfurter: -- for this very case.
Ralph S. Spritzer: -- 48 States could enter 48 cease-and-desist orders against National. Our factual situation is that not one of the 48 has even considered proceedings.
Felix Frankfurter: I just want (Inaudible)
William J. Brennan, Jr.: But your position also is even the 48 States Commission -- Commissioners did (Inaudible) nevertheless, there is a federal power that acts as the Commission did here.
Ralph S. Spritzer: No.
William J. Brennan, Jr.: No.
Ralph S. Spritzer: No. We would say that the States, under the McCarran-Ferguson Bill to which I will come, have top billing as it were. The State's systems are given the opportunity to act first. And if the States do act, we think that the federal power is pro tanto excluded, that is --
William J. Brennan, Jr.: Well, now, if -- if the States do act, you mean not act in the sense as I understand you to say all the plea have acted, that is by adopting statutes? They must in fact attempt to reach the particular case and if -- if that's done, that would be a defense to win the effort on the part of Federal Trade Commission Act.
Ralph S. Spritzer: Exactly.
Felix Frankfurter: Even by that 48 States or what? You -- you said pro tanto. Suppose in X number of States, proceedings are actually begun like unto the immediate proceedings before us, and then suppose X number is three or five or 27 or 48, now, what is the effect of that from this procedure?
Ralph S. Spritzer: McCarran-Ferguson Act, I think, has as its policy that each State may regulate for itself for the protection of its own citizens. And if it does, that is all the regulation that there is to be. There is not to be double regulation --
Felix Frankfurter: You mean --
Ralph S. Spritzer: -- so that any if State acts, then the Federal Trade Commission, I would say, cannot enter an order which would deal with the practices of an insurer within the borders of that State. If New Jersey has a proceeding and says that National can't distribute this advertising literature in New Jersey and then the Federal Trade Commission comes in and files a complaint, I would say that the Federal Trade Commission's order could only be made effective in relation to the other 47 States.
Felix Frankfurter: Now, suppose that this -- this (Inaudible) meeting, if isn't summed up, of the House of Governors, there's an agreement among the 48 Governors that they will instruct their power to the Attorney General to begin those proceedings and 48 proceedings start or initiated in the 48 States --
Ralph S. Spritzer: Yes, sir.
Felix Frankfurter: -- that displaces all the Federal Trade Commission?
Ralph S. Spritzer: Well, certainly if the Federal Trade Commission has not at that point proceeded, it would not proceed and --
Felix Frankfurter: But I'm not asking about policy, I'm asking about the limitation of power.
Ralph S. Spritzer: Well, I think perhaps regulation would begin with the institution of a specific complaint. But certainly, I would say, it does not begin with the mere enactment of an enabling statute giving legislative --
Felix Frankfurter: I understand that.
Ralph S. Spritzer: -- power to the administrator and that's our case.
Felix Frankfurter: You've made that -- you've made that clear --
Ralph S. Spritzer: Yes.
Felix Frankfurter: -- but I'm not wholly clearer to the effects of the actual beginning of the process of enforcing state laws. And I gather from what you last said, if assuming there is no sham about it, 48 States get going. That's the plan of the Federal Trade Commission, is that right?
Ralph S. Spritzer: I would think so.
Felix Frankfurter: That's your position.
Ralph S. Spritzer: I would think so.
William O. Douglas: But also -- suppose you -- they never could get going on -- on this 5% or 6% of -- part of -- the -- the out-of-state home office in using the mails to bring stuff in.
Ralph S. Spritzer: Well, maybe one would have a substantive due process question there. We, of course, do not concede that anything that State cannot regulate is in the federal regulation.
William O. Douglas: How -- how that home office would be reached as a practical matter.
Ralph S. Spritzer: Yes.
Speaker: (Inaudible)
Ralph S. Spritzer: I -- in our cases here now, 100% of the material in the American case and 95% in the National case is distributed by the local agents after they get it from the home office and certainly as to those portions, the -- we have no doubt that the States could, if they chose, effectively regulate.
William J. Brennan, Jr.: (Inaudible) State of the home office regulating in the way would bar the use of the mail (Inaudible)
Ralph S. Spritzer: No, I have relation to regulation by each of the States in which the material was disseminated. I think certainly each State has the power and the legitimate interest to prevent dissemination within the State of false and deceptive material.
William J. Brennan, Jr.: (Inaudible) sending it through the agents by mail in each of the other 47 States?
Ralph S. Spritzer: Well, perhaps the home offices -- perhaps the -- the only State conceivably would be the State of the corporation.
William J. Brennan, Jr.: Well, that -- that was my question, whether the State of the home office could, under some statute, forbids the home office from mailing this material. Of course, they might.
Ralph S. Spritzer: I think perhaps they might.
William J. Brennan, Jr.: They might again.
Ralph S. Spritzer: The answer is it might. I think most of the state statutes in terms would not permit that because most of the state statutes deal with misrepresentations occurring within the State and I take it that this representation to the public occurs at the place of dissemination rather than at the place where the home office is sending material out to its own agents. So -- yes.
Charles E. Whittaker: (Inaudible)
Ralph S. Spritzer: It does.
Charles E. Whittaker: (Inaudible)
Ralph S. Spritzer: It does and I -- I wish to get to it immediately.
Earl Warren: May I interrupt with just one more question, Mr. Spritzer?
Ralph S. Spritzer: Yes.
Earl Warren: At the outset, you -- you enumerated five different types of misrepresentation. I think it was in the case of National.
Ralph S. Spritzer: Yes, sir.
Earl Warren: Now, let us suppose that State A selects one of those types of misrepresentation and proceeds against National for that one and only that one type of misrepresentation, what is the position of the Federal Government then as to the others? Could it -- could it then proceed against the company on the others?
Ralph S. Spritzer: Well, I think that if the state officer, let us say the Commissioner of Insurance made a determination or a ruling, be it formal or informal, that -- that only certain of these representations were serious not in his view that he was going to proceed against it or if he determines that some were permissible and others might not be, I don't think that we could then regulate. I think his determination would be dispositive as to the protection of the citizens of that State are going to get.
Speaker: In other words, you think the State, if the Federal Trade Commission took affirmative action and the State of New York, for example, said, “Well, we don't agree and we will -- we want this advertising in New York,” that they could overrule the Federal Trade Commission.
Ralph S. Spritzer: I would not concede that was so. If the Federal Trade Commission already had an outstanding order because I would think that once jurisdiction attached to issue the Federal Trade Commission order that it would not thereafter be absolute. If, on the other hand, New York had determined before there was any outstanding federal injunction for itself, which representations were good and which were bad, then I would say that that was the end of the matter so far as the federal --
Speaker: You mean if the Federal Trade Commission stepped in at this stage of the matter and started complaints against -- in every State involving companies selling in all States of the union that would -- that would preempt the matter from the States, any of those States, do you think?
Ralph S. Spritzer: The States could always proceed for themselves but I don't -- what -- my suggestion was that the federal cease-and-desist order, if it had been entered before there were any state proceeding, would not be vacated merely because the State thereafter brought a proceeding. Now, the State could still go in its own proceeding. Let me illustrate.Suppose the Federal Trade Commission finds that the representations are not deceptive, all of the 48 States could each consider for itself, each for itself, whether it wanted to prohibit some of the representation or if the Federal Trade Commission concludes that the advertising is defective. It might well be that the State Commissioners of the insurance would still want to obtain a state cease-and-desist order against the same practices, so they could police it and go into the state court. Our question here is not whether the States may act, but they can in all events. The question is when the Federal Government is disabled from acting. Now, I -- I think it is the statutory question basically.
Felix Frankfurter: So you also state the States have (Inaudible)
Ralph S. Spritzer: Yes, sir. And even if they are later, they can supplement. They can also come in and have their own orders and make their own determination. Now, I need hardly spend any time on the Federal Trade Commission Act, instead it's so familiar to the Court. We have set it forth on page 3. I do point out that it is with the Federal Trade Commission Act that we begin and not with McCarran-Ferguson because the FTC Act is the organic act which confers upon it, upon the Commission its jurisdiction. And the courts below, I think, erroneously proceeded from the premise that they were to look in McCarran-Ferguson to find commission jurisdiction. Section 5, which relates to unfair and deceptive acts and practices, is set out in full at page 3. Let me note only in passing that the FTC Act made no exception for the business of insurance, though it did for some other businesses like banking and common carriage.
Felix Frankfurter: That's a little retrospective interpretation.
Ralph S. Spritzer: Yes. The McCarran-Ferguson Act is set forth in our brief at pages 4 and 5. The statement of purpose at the outset, at the top of page 4, is that continued regulation and taxation by the several States of the business of insurance is in the public interest. And then it goes on to say that silence on the part of Congress shall not impose any barrier to the regulation or taxation by the State. Then, in Section 2, consistently with that general declaration of purpose, we find that 2 (a) provides that the business of insurance shall be subject to the laws of the several States, which relate to the regulation or taxation of such business. And (b) goes on to say that no Act of Congress shall be construed to invalidate, impair or supersede any law enacted by any State for the purpose of regulating the business of insurance. And then, we come to the proviso clause which is the crucial sentence for these cases, "Provided that after June 30, 1948, the Sherman Act, the Clayton Act and the Federal Trade Commission Act shall be applicable to the business of insurance to the extent that such business is not regulated by state laws. Now, narrowly, I think our question here is what do the four words regulated by state law mean as used in the statute?
William J. Brennan, Jr.: In other words, whether the mere enacting of state statutes in this subject is regulation or not, is that it?
Ralph S. Spritzer: That is correct, Your Honor. And that position, that the mere enactment of state enabling statutes, which set out general standards, impose no sanctions, delegate all authority to regulate to an administrative agency. That the mere enactment of such statute is not -- isn't position that respondents take which leads them in this case to argue that even though there has been no regulation in fact, no consideration by the States of the practices which are challenged in these cases. Even so, they would say in their sentence, there has been regulation because there is a law on the books under which the Commissioner of Insurance, if he knew about this or learned about it and if he chose to proceed and to conduct a hearing, could or might enter at all.
William J. Brennan, Jr.: Well, now, Mr. Spritzer, in the National case, I notice that this order is directed to distribution in Mississippi, Rhode Island, Montana, Missouri or the District of Columbia. Now, didn't you say to us earlier that at least in the District of Columbia, there's no such regulatory statute?
Ralph S. Spritzer: There are several States in which there is no statute. I've been addressing myself to the situation which takes in more than 40 of the States where there is a statute.
William J. Brennan, Jr.: Isn't that the National case?
Ralph S. Spritzer: Yes, National does business in 48 States.
William J. Brennan, Jr.: Well, I'm looking -- am I looking at the wrong order at page 202 --
Ralph S. Spritzer: You're looking --
William J. Brennan, Jr.: -- of the record.
Ralph S. Spritzer: -- at the National record at 202?
William J. Brennan, Jr.: Yes. I don't know. I'm -- I am looking at an order where it seems to be limited in its application with the State by name.
Ralph S. Spritzer: You're looking at the Examiner's decision, Your Honor.
William J. Brennan, Jr.: Oh, was that it? I see. All right. Don't let me waste your time. Go ahead.
Ralph S. Spritzer: As I was saying I -- I think our -- our question is, what regulation by a state law means as used in this Act? Now, one will note that the sentence immediately precedingly proviso speaks about any law enacted by any State. However, the proviso declares that there shall be federal jurisdiction to the extent that such business is not regulated by state laws. Now, I -- I suggest that if Congress had proposed to do so, it would have been a very easy matter to make the incidence of federal power depend upon the enactment of state law. Indeed, in the very paragraph, we're here concerned with. Congress speaks of an act -- enactments under state law. Yet, the statute does not provide that the existence of state legislation or the enactment of state law will automatically exclude the Federal Trade Commission from regulating interstate transactions terminating in that State. On the contrary, the exception is phrased in terms of regulation and we say that regulation and legislation are not unanimous. It is also relevant I think that many federal Acts and many assertions of federal power are made by Congress to depend specifically on whether there is a state law. Here, we have a -- a different choice of language, not the word "legislation" or not enactment of state laws, but the use of the word "regulation". Now, I don't suggest that one should consider this simply as a -- as a dictionary proposition, certainly it is important to look at the purposes and such light -- to consider such light as maybe cast catch by the history of McCarran-Ferguson. Now, as the Court is -- I'm sure aware, McCarran-Ferguson was a direct response by the Congress to the decision of this Court in 1944 in United States against South-Eastern Underwriters. That decision in a Sherman Act case determined for the first time for overruling precedents going back for so many years that the business of insurance was commerce in the sense of the Commerce Clause. Consequently, the Court reinstated a Sherman Act indictment against a group of insurance underwriters. Immediately, following that opinion, the States and the insurance companies made very strong representations to the Congress, asserting that if the Commerce Clause restrictions apply to the States, to their regulatory measures and to their taxing statutes, that many of the existing state systems, established state systems with the effect it was claimed that there was great confusion and doubt, and that it couldn't be set what state laws would be held to be burdened upon commerce or to be discriminatory against commerce and -- and what -- what is not. Now, it was against this background that Congress passed McCarran-Ferguson. There's no question that Congress meant to permit the state systems to operate as they had prior to the South-Eastern Underwriters decision. We don't, for a moment, challenge that. What we do say is that McCarran-Ferguson did not intend to leave any no man's land, any vacuum in which there would be no regulation. It wanted to provide for situations in which the States could not act, perhaps for constitutional reasons that applied to particular facts. And it wanted to provide for regulation, we believe, in situations in which the States, though they might act did not choose to act or fail to act. I would like to turn for a few minutes to such history as we have which bears on the meaning of this proviso clause. There were separate bills introduced in each of the two Houses in 1945, following the South-Eastern Underwriters case. The bills in each House would have provided in one way or another that the States would continue to regulate what they had in the past, the insurance business. The House Report and also Senator McCarran on the floor of the Senate both pointed out that there were limitations upon what the States could do in relation to out-of-state companies, due process limitations. And both the Senate and the House Reports go on to state that the respective bills are designed to ensure adequate and effective regulation. Now, McCarran-Ferguson states to be sure that the Federal Government shall not impair the state systems.And the proviso clause declares to be sure that if the States act, the Federal Government will not act. We suggest that it is one thing to say that the Federal Government shall not impose either conflicting or double regulation. It is quite another thing to say that the Federal Government is precluded from acting where the States are not providing any regulation. Now, what light is --
Charles E. Whittaker: Now -- now, if I might interrupt. You used the word (Inaudible), is that my understanding? You used the word several times “regulation” which, to my mind, is a vastly different thing than the phrase “regulated by state law”, is it not?
Ralph S. Spritzer: Well, I think all state regulation would have to be by or pursuant to state law. But what I'm trying to distinguish between is a piece of legislation which delegates authority to an administrative agency. The legislation itself and the regulation, which I think is only completed under a statute of this kind when the administrative machinery is used. What I have in mind, I think, is what was very colorfully stated by the late Justice Jackson in the Ruberoid case. There, he was not talking about the Federal Trade Commission Act but about the Robinson-Patman Act. And in speaking of Robinson-Patman, he considered the administrative process. He first pointed out that Robinson-Patman sets up general standards. And then, he went on to say, “Such legislation,” I'm looking at page 53 of the Government's brief, “represents in inchoate law, in the sense that it does not lay down rules which call for immediate compliance on paying of punishment by judicial process. The intervention of another authority must mature and perfect an effective rule of conduct before one is subject to coercion.” And then, he goes on to develop the -- the points that under a statute like this, there is an expanded legislative power which goes to the administrative agency." And only when the general standards of the statute are given meaning and content in the specific case, only when a rule or order is issued,” he says, “does one have regulation," and that is the argument we are making here. And we think that that is the sense in which one should read regulated by state law in this statute. If one is to avoid the situation where there will be a regulatory void, the experience has been, as perhaps might have been anticipated, perhaps because of the difficulties of the States in dealing with this situation, the experience in any event has been that the States has not been acting in this field. Now, we think that McCarran-Ferguson made clear that the States could act. It made clear moreover that they might act if they chose free of Commerce Clause restrictions. But we don't think that federal regulation in the sense that I'm speaking about, regulation by the institution of administrative proceedings and the issuance of administrative orders that such federal regulation is precluded unless there is at least some consideration, some ruling, some determination by the State. Now, I don't say that the State has to decide that it will file a cease-and-desist proceeding. I think the State might rule through its Commissioner or other officer that certain practices from the standpoint of that State are all right. And if it does that, we concede that that is a ruling or determination, that is regulation which would prevent a federal order from being applied to the insurance company doing business in that State.
Felix Frankfurter: But there must be some avow -- some formal manifestations, some pronouncement that will advise the Federal Trade Commission which the Insurance Commission of Idaho or Georgia or Wyoming or mainly on the job. Is that right?
Ralph S. Spritzer: Well, I don't say there has to be a formal order.
Felix Frankfurter: Well, how would he know if it was not a formal? There must be some public evidence (Voice Overlap) --
Ralph S. Spritzer: Some -- something --
Felix Frankfurter: The Insurance Commissioner of Wyoming had made around the job, is that right?
Ralph S. Spritzer: No, that they had made a ruling.
Felix Frankfurter: Well, but --
Ralph S. Spritzer: So, if it's -- yes.
Felix Frankfurter: It can't be that he -- that he is a (Inaudible) man and has worried about it, studied it and decided that there's nothing to proceed again. That will do. He must make that manifest, somehow or rather that the reaches the Federal Trade Commission unconstitutionality.
Ralph S. Spritzer: No, no, the -- if the Federal Trade Commission institutes a proceeding against National as it did here and National can come in and show any ruling or can produce an affidavit, the State has acted in the matter. I think that's perfectly sufficient to establish an affirmative defense that the Federal Trade Commission has no jurisdiction in relation to that State.
Felix Frankfurter: Is that -- is that what the judge (Inaudible) Could -- could you say that likely without having litigation, whether he did or didn't act, whether he did or didn't consider, whether he has sufficiently considered (Inaudible) from litigation?
Ralph S. Spritzer: I-- I -- I'm --
Felix Frankfurter: (Voice Overlap) --
Ralph S. Spritzer: -- not suggesting to the Court that either the Federal Trade Commission, Your Honor, or the federal courts are to make at any stage a qualitative judgment as to whether the State Commissioners are doing a good job. If they rule upon it, their determination whether it may be wise or unwise in somebody else's opinion is the determination which is effective, so far as the citizens of that State --
Felix Frankfurter: With which you have lots of --
Ralph S. Spritzer: -- is -- are concerned.
Felix Frankfurter: -- litigations, lots of litigation whether he did rule upon as I (Inaudible) couldn't determine this thing unless -- it then established that he did rule (Voice Overlap) --
Ralph S. Spritzer: Well, I think it would be --
Felix Frankfurter: -- beyond having satisfied himself of (Inaudible)
Ralph S. Spritzer: Well, it -- it --
Felix Frankfurter: (Voice Overlap) wouldn't it?
Ralph S. Spritzer: -- it might be necessary to secure an affidavit from him in that -- in that circumstance. Let me point out to the Court the -- the facts as to whether there has been any ruling involved in this National case. Now, this was placed in issue originally. National filed an answer which appears at 11 and 12 of the National record in which it made a claim that under Michigan law, it was fully regulated. The Examiner made a finding in relation to that claim. National doesn't claim that anybody -- any officer of any of the other 47 States regulated to this claim that was regulated by Michigan. The Examiner's finding on that is at record 190 and he states, “Respondent's officials have nothing to show approval of respondent's advertising by the Michigan Insurance Commissioner." In any event, it was never submitted to him for approval. Respondent does not submitted the advertising to the Insurance Commissioner of Michigan before it is used. Respondent's business was not inspected by the Insurance Commissioner of the State during the period covered by the complaint which was 1953 and 1954. That finding has not been challenged and when -- National went to the Court of Appeals what it alleged in its petition for review. If he got any claim that it was regulated by Michigan and it alleges on record 214, 45 States including the State of Michigan have an active statutes. That's the basis for their claim that they are regulated.
Felix Frankfurter: What I'm -- what I'm trying to search is not their claim but your claim because I should think it's the common experience of every prosecutor and (Inaudible) but the fact that if you don't prosecute doesn't mean approval. It maybe you wait for a rightful change. It may mean this, it may mean that, involving discretion in determination by the responsible officials to act on the law or not without thereby giving him a blue ribbon for excellent procurity.
Ralph S. Spritzer: Oh, I -- I would make -- wish to make clear that we are not suggesting that there must be anything like a formal ruling. We do say that there is an obligation upon the party who claims that the Federal Trade Commission has been divested to show something in the nature of regulation beyond the mere enactment of a statute.
William J. Brennan, Jr.: How does this all work in the various Sherman law (Inaudible) Those are the other statutes in addition to the Federal State Commission Act.
Ralph S. Spritzer: Well, I don't -- I don't think --
William J. Brennan, Jr.: (Voice Overlap) applies.
Ralph S. Spritzer: There has -- there has been very little litigation on -- insofar as the Sherman Act is concerned because most of the States, it may be almost all of them, have permitted insurance companies to engage in price fixing through rate bureaus. There's a contrary policy and we would not assert that if there is a contrary state policy, there was any room at all under McCarran-Ferguson for federal action, safe to the extent that the McCarran-Ferguson Act itself explicitly provides in Section 4 that the Sherman Act may still be invoked regardless of state legislation where there's coercion, boycott or intimidation.
William J. Brennan, Jr.: Well, apart from that, I'm -- I'm just wondering what there is of the Sherman Act area under the proviso in 2 (b)?
Ralph S. Spritzer: Well, it will depend on what the state legislation was, of course, whether the States had policies. Now, in fact, I think state policy -- state policies are not consonant with the Sherman Act, so that leaves very little room.
William J. Brennan, Jr.: That eliminates the Sherman?
Ralph S. Spritzer: Pardon?
William J. Brennan, Jr.: That eliminates the Sherman?
Ralph S. Spritzer: It leaves little room. Certainly, the Sherman Act is not eliminated altogether and Section 4 itself shows.
William J. Brennan, Jr.: I agree, but --
Ralph S. Spritzer: Yes.
William J. Brennan, Jr.: -- apart from the area covered by Section 4, what is the lesson in 2 (b)?
Ralph S. Spritzer: I think it's narrow, but I -- I -- we have not cataloged the -- the State Sherman Acts. We've --
William J. Brennan, Jr.: (Voice Overlap) --
Ralph S. Spritzer: -- been interested in State Federal Trade Commission Acts.
William J. Brennan, Jr.: Could you say the same as Clayton Act?
Ralph S. Spritzer: No, I don't think this -- my impression at least is that the States do not have on so greatest -- that so -- not so many of the States have statutes comparable to the Clayton Act. It does have States which deal with the matter of rate fixing. I think most of the States have given license to the insurance companies to get together through joint action and fixed rates through their rate bureaus and the like. There have been no federal antitrust cases, so far as I'm aware, involving the insurance business, saved in situations where there has been allegations of boycott, coercion or intimidation.
William J. Brennan, Jr.: We have one of those theories early (Inaudible) So, we have one from the (Inaudible)
Ralph S. Spritzer: Co-counsel mentions the New Orleans Insurance case. Now, I'd like to take just a few minutes to go beyond the -- the reports and make brief reference to some of the history as made by those who are in charge of the legislation. This proviso clause that we're concerned with was added in conference. The Conference Report doesn't discuss it, so we are thrown back upon the statements of the sponsors. Now, as it happens, all three of the Senate Conferees did address themselves to the proviso clause during the debates in the Senate. And we have excerpts from each of those three conferee statements at page 58 and the following pages. Senator McCarran's statement appears at 58. We've quoted it there and he points out, “If the States enact legislation,” I'm reading from the second sentence of that quotation, “to the extent that they regulate, they would have taken the business of insurance out from under the Sherman and the Clayton and the other Acts to the extent that they regulate our -- our words which we emphasize and that they again suggest that this use of regulate rather than legislate, regulate rather than enact laws in the proviso clause is not accidental but apparently purposeful.”
Speaker: (Inaudible)
William J. Brennan, Jr.: If there is some implementation or enforcement, yes. Now, I would distinguish between an active legislation which is self-executing as it were or which carries some immediate criminal penalty and a statute like this Baby Federal Trade Commission Acts which does no more than delegate the authority to regulate and which in and of itself imposes no sanction. We have quoted similarly statements from the two other Senators, both of which emphasized and those are Senators Ferguson and O'Mahoney emphasized that there is to be continued room for federal action. Both of them contemplated that there was to be no regulatory board either because the States couldn't act or because they were not acting. And this same understanding is manifested by President Roosevelt in his statement in signing the Bill where he speaks at page 65 of our brief that after the moratorium, the anti-trust laws and related statutes will be applicable in full force than the effects to the business of insurance except to the extent that the State had assumed the responsibility and are effectively performing that responsibility. Thank you.
Earl Warren: We'll recess now.


Earl Warren: -- continue your argument.
Carl W. Belcher: Thank you, Mr. Chief Justice. Before the recess, I was just concluding the coverage of certain statistics and I would just like to add to that, that these figures are available to the Court from independent means, that is from the annual reports of the Administrative Office of the Federal Courts, also from the annual report of the Attorney General would give an appraisal to this problem and in addition, the brief in the Lurk case in the last term do contain these very particular figures that I have referred to, the 60 figure of being granted to the District Court to 43 in the Court of Appeals and those figures. Now this petitioner, of course, was denied forma pauperis for the Court of Appeals. But the issues in this case are not to be found in the granted column as opposed to the denied column because many of the cases in which the Court of Appeals initially considers under the processes here do eventually go on to become cases in which oral argument is granted so that there is a difference to be made in just a column choice.
Charles E. Whittaker: Mr. Belcher.
Carl W. Belcher: Yes, Your Honor?
Charles E. Whittaker: May I ask, what if (Inaudible)
Carl W. Belcher: The answer is he would have had oral argument and nothing else.
John M. Harlan II: Then how was the procedure here different (Inaudible)
Carl W. Belcher: The procedure here is substantially the same as it was in the Lurk case as I know it. In the Lurk case, there was no --
John M. Harlan II: Is there any difference?
Carl W. Belcher: No difference that I could care to point to at this time.
John M. Harlan II: Well, is there -- the Lurk case, decided in what (Inaudible) --
Carl W. Belcher: If the Lurk decides that question and -- my argument on this procedure is no longer valid.
John M. Harlan II: (Inaudible)
Carl W. Belcher: As we understand the Lurk case, there were new issues presented to this Court which had not been presented to the Court of Appeals. The Court of Appeals considered the judge that presided at the trial is a judge. The issues raised in this Court were in terms of the Court of Custom and Patents Appeals as a court and it was on the basis of those new issues. As I understand it, the Lurk decision was rendered and it was basically a decision that that new question which had been injected in the case in this Court should first be considered by the Court of Appeals. So that in the Government's view, the Lurk case in no way passed upon the questions which are involved here. And indeed, to support that proposition is noteworthy, I believe that it is the same day, Your Honor, that the Lurk case was decided in a way that I suggested it was, certiorari was granted in this case, and I suggest that the Court would not have granted certiorari in this case if it felt that the Lurk case, the decision at the same day was dispositive for the issue which I'm espousing here. So that I believe the issue is still here before the Court --
John M. Harlan II: (Inaudible)
Carl W. Belcher: Well, I make the assumption, Your Honor, that the Court would not do a useless thing of having this case come off for oral argument.
John M. Harlan II: In the Lurk case, as a fact, the (Inaudible) consideration of the Court of Appeals (Inaudible)
Carl W. Belcher: That's correct.
John M. Harlan II: (Inaudible)
Carl W. Belcher: And it's sent back -- the difference is, Your Honor, it sent back a bigger issue -- a different issue really.
John M. Harlan II: Yes, for some instance (Inaudible)
Carl W. Belcher: That's correct.
John M. Harlan II: (Inaudible)
Carl W. Belcher: And for my purposes, it's not worthy that when the Court of Appeals got this new issue, Court of Appeals did allow forma pauperis in that case and they did come off for oral argument, I believe, before all nine judges of the Court of Appeals, sending it back, so that --
Charles E. Whittaker: (Inaudible)
Carl W. Belcher: -- it was considered.
Charles E. Whittaker: (Inaudible)
Carl W. Belcher: The procedure in Lurk was briefed and I believe argued by counsel in Lurk, but at almost, the outset of the consideration by the court in the Lurk case, we were confronted with this proposition that there was entirely new issue being presented for the first time to you, and that new issue had not been presented to the Court of Appeals. As I understand the Lurk opinion, it is to the effect that that new -- new issue first presented here should be considered by the Court of Appeals, and that was the purpose on the remand.
Charles E. Whittaker: (Inaudible)
Carl W. Belcher: We do have as a fifth issue of -- of merit. We do have the claim that the trial judge failed to instruct the jury properly. That issue was not raised first in the Court of Appeals.
Hugo L. Black: But you're not suggesting, are you, (Inaudible) you wouldn't suggest that we refrain from passing on the -- whether the points that argued were frivolous in order to send this additional point back to --
Carl W. Belcher: No, Your Honor, I would suggest that all these issues can be considered by the Court here and be found to be frivolous as the Government suggests that they are -- that procedure can be fully reviewed and sustained. The matter -- the matter of select --
Earl Warren: Mr. Belcher, may I trouble just one -- once more about the procedure. In the Court of Appeals, do -- do these hearings such as petitioner got in this case come up on the regular calendar, and that -- do they have the -- the same priorities and -- and the same procedures that the cases on appeal have?
Carl W. Belcher: They have exactly the same procedures. They do come up on a calendar. It's a calendar which is called amongst the attorneys, the motions calendar in the sense that it comes up distinctive from the oral argument calendar and this calendar, for these cases, is considered by the court in chambers without oral argument in it. As a result of this mechanical distinction being made, and because of the efficiency built into the processes, the actual results in the Court of Appeals are altered more expeditious in this kind of case than they are in a regular appeal.
Earl Warren: In other -- in other words, when a man filed a petition such as this, he gets a hearing and the decision as quickly as -- as a person would on the appeal calendar --
Carl W. Belcher: He does. He does and often it is quicker, more -- more efficient. Indeed that's the principal reason for this -- this system, is its efficiency, its enabled to handle a greater number of petitions and cases in a more expeditious way. Now, as a matter of selecting cases for review, if Your Honors have noticed, some cases do not go through this review that the Court -- this particular case did. The matter of deciding which cases will get the review by the transcript of proceedings is the heart of the issues in this case, and that process is best identified and understood by the record in this case. As I suggested to Mr. Justice Whittaker earlier, the record is entirely here every pleadings of note that was filed in the Court of Appeals is put forth in a sequence here in this record. And on page 1 of the record is the prisoner's own pre se petition for forma pauperis, and it's a well-done petition. It's much better than the normal petition. On the basis of that petition at record page 5, the Court of Appeals without waiting for the time to elapse for the Government to oppose the prisoner's petition, did appoint him counsel, Mr. Boskey was appointed by the order appearing on page 5. As a result of his appointment, Mr. Boskey prepared a petition in support of the memorandum and support of the petition which begins on page 5 and which continues on, for some 20 of these record pages to record page 27. And as I've suggested to the Court earlier, he was given a full opportunity to discuss the issues which were involved. Record page 27 is the conclusion of the memorandum by Mr. Boskey and this conclusion I think is in support of the process which eventually followed. And he concludes and I quote, “In the foregoing presentation, it's a substantial question to which appeared to exist on appeal so far as such a matter can be assessed in the absence of a transcript, but there may be various other substantial questions disclosed for the transcript. Also, the transcript may well lead to a somewhat different evaluation” and he proceeds to say that different evaluation may result to the benefit of his client. Implicit in the statement I would add is also the contrary to the effect that that evaluation might react contrary to his client. And this is the basic proposition to the system that we're discussing, which is that criminal cases do have their roots so deeply embedded in the patch of the case as distinct from distinguishing cases, Presslor cases and that sort thing, the question of whether the facts support the legal arguments are so altered, determinative of the processes and issues, determined indeed whether or not this particular process, the review by transcript, as I term it, is a valid process or not a valid process, because that is the rock bottom of the consideration here. Passing onto this record though, to show that full and complete consideration was given to this matter by the court, after Mr. Boskey's statement was filed, the Government on page 31, filed a very short document in which it conceded that the transcript was needed, but the concession was limited in it's purport to one of the three issues which Mr. Boskey raised. Government in effect said that the indictment is not a valid issue that the disqualification of Judge Holtzoff is not a valid issue, but the matter of (Inaudible) and admissibility were his testimony is something that we do need to look at the transcript and suggested that the entitlement to an appeal be based rock bottom on what that transcript showed on that one issue, and suggested that Mr. Boskey after he received the transcript should again present a memorandum to the court based on that transcript of proceedings, having received it. Mr. Boskey came back in the next several pages in which he talks about delay in the judicial process and suggests amongst other things that his client was entitled, as of the moment, to go to oral argument with his case despite the contention that the back record might well show to the contrary. He also complained, of course, that he should not have to come forward at that point with the transcript himself. Now the order of the Court of Appeals is note worthy. It grants a transcript and in that sense it complies at least in part with the rule of the Ellis case, but the Court of Appeals ordered, which appears on page 34, is a response to this situation which it was confronted with. It did not ask Mr. Boskey to come forward for the transcript. Instead, it said to the Government, “You come forward with your transcript -- with your memorandum based on the transcript.” Now, as I construe these proceedings, terminology is not there, but in effect, the Government was put to burden of showing cause in its next move after the transcript, showing cause based on that transcript why this case should not go to oral argument, and that of course is exactly what the Government proceeded to do. But this one order, insignificant though it appears on its face, this order, on page 34 of the record which grants a transcript is the beginning and indeed the heart of this process which is challenged by my opponent. He says, “Instead of getting only a transcript, I should've gotten forma pauperis which allowed me immediately to proceed to the in rem result of oral argument” and that which he did not want to have his case reviewed in the light of the transcript. He wanted and instead to go into a posture where the implicit order of forma pauperis would put him in a position, put it in a route where it might not be looked at any further until the turn -- time of oral argument and he wanted his case in that position where it would not be looked at any further until the time of oral argument. One other fact, I think, is significant about this order on page 34 that appears on its face, the final disposition in this case was a split decision of three judges in the sense that Judge Bazelon did note his dissent, no opinion but he noted this dissent. The same panel that ultimately decided this case had entered this order. This order which is at the heart of the process here in question is a unanimous order. There is no dissent.
Earl Warren: How did you get another panel to decide that? As I understand it, there was a split decision on whether he was entitled to appeal?
Carl W. Belcher: In forma pauperis?
Earl Warren: Yes, and then you say there was another panel to that?
Carl W. Belcher: No, I'm speaking about the same panel which had acted at this earlier stage. At later stage, there was a split but at the earlier stage --
Earl Warren: Yes.
Carl W. Belcher: -- which is the heart of the screening review -- transcript review process.
Earl Warren: Yes, I see.
Carl W. Belcher: This was a unanimous panel and there was no split decision.
Felix Frankfurter: Is there -- is there any light you would know as to whether, after they pass on motion in rem it comes to the final decree or judgment, the final judgment. The judge who would vote -- who had voted to grant the petition to take the appeal just acquiescence in the judgment when the note is -- is (Inaudible) judgment. I'm asking what they practice.
Carl W. Belcher: The practice is that they can do either two things. Simply note --
Felix Frankfurter: Not can't -- not what they can do. I want to know what in fact is being done in this district.
Carl W. Belcher: In fact, they are doing it two ways. They simply note their dissent or they are at liberty to. And it's not unusual that there is a printed opinion at -- in the nature of a dissent which is attached to such an order.
Felix Frankfurter: Yes, but my next -- my question is, when it comes to the formal final judgment that Judge Bazelon note that he dissented in the formal decree, in the formal judgment which is the judicial (Inaudible) of the review.
Carl W. Belcher: He does. He does note his dissent at that time --
Felix Frankfurter: That time, he doesn't (Inaudible), is that it?
Carl W. Belcher: Well, in this particular case, he did but not always, does he?
Felix Frankfurter: I thought it's just --
Carl W. Belcher: In this particular case, that he did.
Felix Frankfurter: I guess I'm confusing you by my obscurity. I thought you've told us that he noted his dissent in the denial from the motion to grant -- to take the appeal. He would have granted the motion.
Carl W. Belcher: That is correct.
Felix Frankfurter: I thought you told us when it came to the entry of the judgment on that disposition, he did not.
Carl W. Belcher: He did. At the entry of judgment, he did not -- had not at this earlier stage when the transcript was granted. In other words, Judge Bazelon was in agreement with the process which is here in question. He agreed to it. He did not dissent from that process -- the process being a transcript review process. He agreed that this case was a case of such nature and such facts. The issue was raised where such that it indeed should go to a screening consideration by the Court based on the transcript itself.
Felix Frankfurter: Oh, well, I misunderstood.
Carl W. Belcher: He did agree to that.
Felix Frankfurter: (Inaudible)
Carl W. Belcher: He did agree.
Earl Warren: Mr. Belcher, I was wondering if in this case instead of -- of denying the appeal they had -- had granted it would the same panel automatically hear the appeal or -- or would have then go on some other calendars subject to -- to assignment to -- to any panel.
Carl W. Belcher: It would go on the oral argument calendar and that would be to reassign it to entirely new panel depending on the judges assigned at the given time.
Earl Warren: So the work that had been done between counsel and the -- and the Court on this special proceeding would probably be of no avail because it would go to another conference and he would have to -- counsel would have to write briefs and and argue again to the -- to the Court.
Carl W. Belcher: Well, the record is certainly there, and any illumination of the issues, the question on authority, all of that would be there in the record and would be useful, I'm sure, for the Court to have regardless to the fact that they -- one or all of the judges in the case were new, the case would be epitomized in such a way that a judge could understand it in a ready fashion.
Earl Warren: Well, is epitomized the same as any other appeal then, wouldn't it be?
Carl W. Belcher: Well, the basic spade work would have been done by this process. In the regular appeal coming on for not having gone through this process, the spade work would have to be done initially.
Earl Warren: Oh I see. But so far as the time and the court is concerned and the (Inaudible) of the court, it would be just as costly to the Government to have this appeal after this hearing as it would in an ordinary case.
Carl W. Belcher: In terms of dollars and cents, the money -- the bulk of the money as was suggested earlier has been spent because that's involved in the preparation of the court reporter's transcript. But what is not considered in that evaluation is the time of the court, the time, for instance, of the oral argument such as we're having here, the matter that you do have court-appointed counsel, and you do have to give at least some differences to having them available for oral argument. The system here is based upon a -- chambers -- in chamber's consideration of things which can be efficiently organized and the cases can be considered in a -- in a way which is more susceptible to handling the volume of petitions in cases which they do have in the District of Columbia.
Potter Stewart: The very point that Mr. Bazelon makes is that you don't have this (Inaudible) efficient streamline procedure in the case of appellants who can afford to pay the fee.
Carl W. Belcher: The difference is, in the nature of cases and it's in the nature of a judicial decision based on those cases. Some of the indigent cases that Mr. Boskey talks about don't go through this process. It depends upon the nature of the issues which are raised and the appraisal of those issues by the judges. The judges seeing some issues and say that they're not dependent on transcript and they -- they may not probably be shown frivolous on -- on the basis of transcript and immediately set over for the oral argument calendar in passing that way. In other cases, the court looking at the issues based upon the advocacy of counsel can say that these issues look as if they may well be disposed off in -- in the reading of the transcript and it's on the basis of a judicial decision in a particular case as to what the probabilities are as to a need for oral argument and a need for consideration of the case through counsel's oral -- orally arguing the case that a decision --
Speaker: (Inaudible)
Carl W. Belcher: -- is made. That's correct. That's exactly the system. The only thing in this -- well, that -- that's correct. I'll stop there.
Earl Warren: Then if they take -- if they come to this Court on -- on certiorari, what is open to us to decide?
Carl W. Belcher: The full case is open, Your Honor, because from here -- have only gone part way in this process, from here on in, it's based on the transcript that counsel does take an advocate's view, the Government takes a contrary view and the decision is made which is exactly the same decision as this Court or the Court of Appeals or any court makes when it passes on motion to affirm, dismiss, or to reverse or any kind of summary motion, all of which are provided for in -- in this Court's rules and in every court's rules.
Earl Warren: And they write -- write opinions in these matters?
Carl W. Belcher: They on occasion do write very likely opinions in forma pauperis cases.
Earl Warren: Normally?
Carl W. Belcher: In a normal case, it's certainly not as great a volume of opinions in this type of work as there are in the other kind of work. The issues are different.
Earl Warren: Can this Court know all of the issues that this Court has passed on and -- and how they have passed on?
Carl W. Belcher: It can indeed. It can know because counsel and the Government by the adversary process have come to grips on each of these issues in a way which is as meaningful as any case whether it was orally argued or not, because if a case is orally argued in the Court of Appeals, there's no court reporter present. It's not taken down in the stenographic fashion. It does not add to an understanding of the record. Each and every court has to come back and look at the record, the same type of record which is here in this case. What the position of the advocates was in the court and what the decision was in the court in response to those. And this record is a meaningful record in that sense. counsel for the Government came back in response to the order of the court, which as I have suggested, was in a nature of a show cause processes and did attempt to show cause in two pages while these issues in this particular case based upon the transcript of proceedings which everyone had before them were not issues of a substantial merit, that the record transcript of proceedings had indeed cast a new light on them as counsel have previously forecasted it might. And in response to the Government's two pages, Mr. Boskey came back himself and said in a document, which begins on page 40 and goes for some 23 pages in this printed record and on these printed pages, what his issues were, how he took a different view of this transcript. Now, for my purposes I must point out that on record page 40 is this concession that I appointed to, because my opponent has referred to it several times and he says on record page 40, these last document filed, accordingly the documents are now at hand for an adjudication of this appeal on it's merits in the same manner as if petitioner were an appellant not indigent. He asked for this summary process in these terms and repeated in later phrase (Inaudible) later time.
John M. Harlan II: Where is that?
Carl W. Belcher: Record page 40, near the bottom.
Earl Warren: Mr. Belcher, I'm afraid we've taking too much time on procedure. I wonder – I wonder if you could get now or soon through the questions to whether -- whether this Aaren -- the issue on the Aaren testimony is frivolous or not.
Carl W. Belcher: Yes, Your Honor. I'll be glad to come to that issue immediately. The Artis' testimony in the first trial was sworn testimony and it was taken under oath. Artis was physically unable to appear in the second trial. At the second trial, counsel took a position --
Earl Warren: What was the reason for it? Was he mentally incapacited -- incapacitated he had a deteriorated --
Carl W. Belcher: He was certainly physically incapacitated and the – the jury was told that his medical history did show the mental picture also. The jury was told that fact in connection with the presentation of this argument.
Earl Warren: Was he schizophrenic?
Carl W. Belcher: Schizophrenic condition. Now, the counsel's position at the trial level was I believe different than it is here. At the trial level, he did not want Artis' testimony to come in at all. And as I understand him now, he -- he's not making the same argument. He's not saying that Artis' first testimony should not come in because of its merits or demerits. They say in perhaps in a total record of the case, considering many and factors that they should not come in, but that's not the argument he advanced in -- in the trial. The trial was he said is a pure and simple direct proposition of law. Artis' testimony should not come in because I don't have the opportunity of giving it the second go around cross-examination and the District Court says, “The cases are against you” and indeed they are. The Mattox case in this Court is directly against that proposition and counsel doesn't really argue against the Mattox case at this time. Now, the second reason which was offered in a trial level for rejection of Artis' testimony was the fact that this document, which I have in my hand and which on record page 22, was now in counsel's position. And it's signed twice as counsel said by Artis. Now, the proposition advanced at the trial level, as distinct from here, was that because of this document, Artis' sworn testimony at first trail should not come in, the earlier testimony should not come in. As I understand his argument now, his main argument is to the effect well, the first trial testimony should come in but this document also come in.
Earl Warren: But he did offer that document?
Carl W. Belcher: He offered this document in this way, he said to the Court, “I have here a document which is signed by Artis” and the Court in effect said, “Where did you get it?” And he said, “Well, I'm not sure how I got it. I've found it in the records and files which I got from one of the several attorneys which had represented this petitioner on an earlier trial -- in the earlier trial, or earlier proceedings, but I don't know which file it was. I don't know which attorney gave it to me, but I have found it here.” Now, this was about the sum and total of the statements made by counsel. Now the -- the initial decision by Judge Holtzoff was to the effect that, “Well, if it's written up in Artis' handwriting and if it is a valid document and all, I'll let them both go in, I'll let the sworn testimony before the jury in the first trial. I'll let your document go in to the evidence also.” But, later on, Judge Holtzoff, in actually looking at the document, found that it was -- number one and that no continuity was shown for the document. It just suddenly appeared, so to speak. Some question but at least it could have perhaps been shown whether Artis signed it or not, but it's not a dated document. No tab appears on it. It could well have been, we suggest, and have in our brief, that this document was signed by Artis before Artis' trial in the first testimony in the first trial, so that his testimony represents the latest and the best. And if it were indeed in the files of one of the other counsel's, it perhaps could have been used if they had saw fit to do so to impeach and discredit Artis in the first trial.
Charles E. Whittaker: (Inaudible) as a matter of law, that kind of a statement would be admissible.
Carl W. Belcher: Your Honor, I --
Charles E. Whittaker: I can see how it would be a ground for a motion to continue the case to give an opportunity to take this man's deposition where both sides would have an opportunity to examine it. But could it be, assuming even that it's later than his original testimony on the first trial, could it be competent as a matter of law?
Carl W. Belcher: That's exactly the position that the Government takes here, that under no circumstances could it be admitted and this is a -- the impediment in the argument of counsel. He relies on the dissent in the Mattox case and the Mattox case says that it has to be a valid and proper document and this doesn't qualify even under the dissent because --
Charles E. Whittaker: -- because if that were competent, then all one would have to do to render incompetent, prior trial testimony would be to get a statement of the witness (Inaudible)
Carl W. Belcher: That's exactly right, Your Honor and that's a -- basic position of the Government that this document ought to have something to back it up, something to support this thing. So that the mere fact that a signature appears on something that's not even holographic, it doesn't entitle to weight -- actually a weight given to such documents or not. The Will case, the mere fact of signature, for instance, does not qualify it on the Federal shop book rule. It doesn't qualify under any system that I know for the admission of evidence. So that the document as such is -- is first of, not admissible on its own weight, but even if it is admissible on its own weight, it certainly doesn't have end run result that counsel contended for in the trial court as distinct from here, which his contention be to exclude the sworn testimony of Artis in the first trial. Even if it goes to the first, it doesn't go to the second and the second and latter which was the barring of Artis' testimony in the first trial was what counsel sought in the first trial. And that matter was disclosed by the transcript of proceedings and as I say, this is an example in support of the transcript review process which is the main issue I think in this case, a look at the transcript of proceedings and not a very hard look. It doesn't take very long to ascertain the fact that counsel, when he said to the Court, number one, he want to put up -- to exclude Artis' sworn testimony in the first trial, but counsel immediately at the -- almost the outset of his introduction, he said to the court, “I can't vouch for this document or in effect said that I can't vouch for it because I don't know where it came from. I don't know how I got it. I just -- I can't say anything about it except that it's here and scrolled on it in two places are -- what appears to be or at least what might be the signature of Artis.” Now, those matters appeared from almost a cursory reading from the transcript of proceedings. And this, I think, is a point and a strong point that does support this preliminary screening by a look at the transcript and that's the system or the process or the -- the way in which the Court of Appeals for the District of Columbia does attempt to handle its volume of cases.
John M. Harlan II: Going back to your first position, is this the fair statement of what it is that -- we should look at this as if the Court of Appeals at the final submission of this matter on the briefs had said, “Motion for leave to appeal in forma pauperis granted in view of the extensive briefing that this case has received we find that oral argument as unnecessary and therefore the case need be docketed, the appeal is dismissed or the appeal is affirmed.”
Carl W. Belcher: That's exactly right Your Honor.
John M. Harlan II: That's the essence?
Carl W. Belcher: That's exactly the essence of it and one may wonder or why isn't the order of the Court of Appeals, as Your Honor phrased it, rather than being in terms of a “denial of forma pauperis.”
Felix Frankfurter: Well, now I suppose -- suppose now on suppose this is sent back, suppose Mr. Boskey prevailed and sent back to the Court of Appeals and that for all I know, (Inaudible) may have taken down Mr. Justice Harlan question which he just put to you as a part of elucidation, I'd better assume that the judges of the Court of Appeals as they unlikely read, when I say (Inaudible) and say, “Well, let's wait to deal with it in the future”, and the only remedy open to this Court would be say -- would be to say that Court of Appeals is evasive about that. And they must have a full dress further argument, further briefs (Inaudible) etcetera, unlike what this Court does in dealing with ICC and other cases on jurisdictional statement and disposing of it on the jurisdictional statement, is that right? Did I make a correct analysis of what is likely to happen, or it may happen I mean?
Carl W. Belcher: Your Honor, I think what is likely to happen upon seeing the --
Felix Frankfurter: It's all on the assumption, all in the assumption that I followed what you've said, that you say in effect, yes to the question that Justice Harlan put you --
Carl W. Belcher: Your Honor, I --
Felix Frankfurter: -- namely, that the Court of Appeals had in fact canvassed this ground and in taking this formula disposable.
Carl W. Belcher: Your Honor, I think the result of -- the knowledge of this question would be that -- it would be said that the problem is being understood because the Court of Appeals in endeavoring to give weight to this statute of Congress, Section 1950 has felt that it must -- in giving weight to that statute and yet following the Ellis case and earlier cases, later cases, merged those two propositions together so that the order which it enters is in terms of the denial forma pauperis, rather that summary affirm or summery reversal as counsel asked for in this case. It's -- it's the middle ground and it's caused and compelled by the statute.
Felix Frankfurter: But you indicated early in your argument that the Court of Appeals has been responsive to this Court's opinion in Ellis.
Carl W. Belcher: It has indeed.
Felix Frankfurter: Therefore, I wish you would tell us, what if -- what its conception was before Ellis and what you concede to be its conception now after Ellis?
Carl W. Belcher: If Your Honor please, the problem that Ellis was presenting was whether or not clearly frivolous would have the affect of -- of clogging its calendars, putting such burden on it that it could not handle it. This system that we've been discussing is the response to Ellis. Thank you, Your Honor.
Earl Warren: I'd like -- I'd like to ask one more -- one more question Mr. Belcher. I'm interested in – in this Aaren's testimony to this extent. The -- the authority that the prosecution has to read the testimony of witness at a former -- former trial is an exception to the general -- general rule, and I just wonder if there are no circumstances, where there is no way of testing the credibility of the witness at the second trial, if counsel didn't have a right to have the judge, who was the same judge trying the -- the second case to insert in the record the same comments concerning the credibility of the witness that he made at the first trial. Now at the first trial, Judge Holtzoff said that, he called it very confusing so forth and then he ended up saying that no jury or no judge would convict any man on the testimony of Aaren and in the second trial, we have just a testimony of Aaren but no such comment by the judge and no opportunity on the part of the defendant to attack the credibility of Aaren. Do you think that it's frivolous for -- for a defendant to insist on a review that question?
Carl W. Belcher: Your Honor insofar as the -- the question deemed simply with the statements of the judge, I point that in this case the -- the best thing that counsel could hope for or would want in this direction would be the cross-examination of Artis in the first trial because this is the rock bottom of the foundation from which the -- the judge's statement flowed and if there are proper statements, then the same response would flow from any reading or hearing of that testimony.
Earl Warren: But Mr. Belcher --
Carl W. Belcher: And -- and in that cross examination --
Earl Warren: Yes -- we'll, you go ahead finish please --
Carl W. Belcher: Now that cross-examination did come in, the jury heard it linked, all of it.
Earl Warren: Yes.
Carl W. Belcher: So that I would say that, if the -- if the remark is something that should be told to the jury, the jury would have had the exactly the same reaction from having heard the testimony itself, the cross-examination, and it did in the prosecution.
Earl Warren: But -- but Mr. Belcher, the judge have the right to view the witness on the stand. He did view the witness on the stand saw the manner in which he testified, his attitude, and so forth and having seen that, he -- he said to the jury in that first case, that no jury or no judge would ever convict a man on the testimony of -- of this fellow. Now, it may not -- if -- his -- his judgments might not have been formed by the precise words that the man used in answering the questions, it might have been used by his demeanor or his attitude and the various other things that can come into consideration, none of which, none of which the defendant could probe on the second trial and here you have a man who -- who has deteriorated since the first trial to such an extent that he's in a mental -- mental hospital and do you think it frivolous for the defendant to raise that on his appeal?
Carl W. Belcher: Your Honor, I do think it's frivolous and my reasons and I concede, Your Honor, does have a very valid point that coming from the judge or at least someone who has seen the personal appearance of the witness does make a difference, but they have both here. On page 39 -- 139 of this record, is the trans -- is a testimony and statements of one who did see this witness testify and the person -- the witness who testified before the jury and described it is the attorney for this petitioner in the first trial. The attorney's name is Mr. Deats, Mr. Deats is testifying and he goes at some length to describe what type of witness, and what type of the individual Artis was. Now --
Earl Warren: He is an attorney for the defendant?
Carl W. Belcher: Attorney for this defendant as I recall in the first -- first trial, but he's testimony only goes to the -- to the effect of what type of witness Artis was. What is his personal appearance was? And Mr. Deats goes at some length that he -- he certainly crystallizes it on page 139, and Justice Clearway as clear way as Judge Holtzoff did in the first trial and Mr. Deats' crystallization is this, “I couldn't honestly say that I believed Artis -- I wouldn't believe Artis under any circumstances.” Now that --
Earl Warren: But he's the attorney for the defendant?
Carl W. Belcher: He -- he is the attorney --
Earl Warren: You can hardly -- you can hardly equate that to -- to an observation by the judge, could you?
Carl W. Belcher: Your Honor the observation for the judge comes in which supports this proposition, I think, is the equivalent, it's not the same, but it's the equivalent, when the judge and the -- and instruction to the jury in the second trial says that all accomplices, and Artis is one, “You should scream with care and caution.” And when a judge in instructing the jury this is not comment -- as correlate (Inaudible) amongst other facts and matters that occurred during the course of trial, this is the supreme moment, as far as the jury is concerned here in the judge and when in that moment, and the judges -- the court -- the jury rather in all of them are giving all of their attention to the judge and the judge says, “A fellow like Artis who is an accomplice, you should look out with care and caution.”
Earl Warren: But he also follows that with another instruction which is peculiar -- somewhat peculiar to the District of Columbia in which he says that they may if they believe the accomplices convicted defendant without any corroboration whatsoever.
Carl W. Belcher: Your Honor, he certainly does follow it. I -- I would only take exception with the word “peculiar” because I think counsel in arguing that point in his brief points out in a footnote that each and every numbered Circuit, and he goes to Circuit number one, Second Circuit, Third Circuit and right on down through the Tenth Circuit, as I'm understanding from he's own footnote and in petitioner's own brief, is to the effect that every Circuit comes to the same conclusion. The judge certainly followed with the comment, the only thing I can say is that every Circuit without exception as I know is following that -- that situation.
Earl Warren: Very well. Mr. Boskey.
Bennett Boskey: Mr. Chief Justice to take the last point first, this Court many times has commented on the difficulty of seeing something from a cold record. Now, in a criminal case, when you read the cold testimony from a prior trial to the jury, all those difficulties are present. This judge had been present in the courtroom. This judge had seen the demeanor of the witness. This judge had formed an impression very unfavorable to the witness and that -- that it's highly prejudicial to this petitioner that the judge's impression not be given to the jury if this testimony was to be admitted at all.
Charles E. Whittaker: Let's see if I understand, is that to say that a judge who was trying a case the second time is under a duty when testimony of the witness is being read on the second trial, is under a duty to give to the jury his impression of the witness who had testified in the former trial?
Bennett Boskey: Mr. Justice Whittaker, it depends, I think, on the circumstances of the case. In this case, where the judge was the same, where safeguards were essential to protect the right of confrontation, where the hallmarks of lying was so apparent and untrustworthy, where the judge had formed such a fixed impression from the first trial, he fell short of his duty and not condemning that impression to the jury. Now, it's conceivable than onto other circumstances, in other cases where these facts aren't present, one might reach a different result. But that isn't this case. This is a most compelling case.
Felix Frankfurter: Mr. Boskey the rule that invoke quite rightly that it's one thing to have trial, a like trial, it's another thing to get it and see to cover this subject, brown paper book, that's (Inaudible) because what -- what it amounts to is very often -- because I'm concerned in the criminal fields in most of time, things have blown up all out of perspective in relation to the live proceeding, concentrated, and give the significance and color and eloquence, and form, that this entitles him to undercut everything else to (Inaudible).
Bennett Boskey: Well, Mr. Justice Frankfurter, I'm not answerable for what happens in other criminal proceeding --
Felix Frankfurter: I know your not, but this case.
Bennett Boskey: -- and other criminal fields. This is not such a case and the burden of my argument has been that this is not such a case. Mr. Justice --
Tom C. Clark: (Inaudible)
Bennett Boskey: One -- one of them he did not make to the jury. Mr. Belcher, I think too willingly exceeded to Chief Justice's statement on that point. The one in which he said at the first trial, “I wouldn't send, no judge would send this man to the penitentiary on the basis this testimony was not the statement made to the jury.” The statement he made to the jury at the first trial was that the witness was confused on the witness stand. Neither statement would he make the jury in this trial even though expressly by counsel and even though in this far the specific said references of the transcript of the first trial where he had made the remarks were brought to his attention. There was nothing inadvertent about this. It was expressly brought to his attention.
Tom C. Clark: (Inaudible)
Bennett Boskey: Yes.
Earl Warren: When was the other statement made, Mr. Boskey?
Bennett Boskey: It was made in a --
Earl Warren: In what connection?
Bennett Boskey: It was made in connection with a colloquy with counsel when I think the judge was trying to speed up the trial of the first case a little. He thought it was going slowly and he was trying to find out how much the Government was really going to rely on in Artis' testimony in the first trial.
Earl Warren: It was going in the course of the trial?
Bennett Boskey: Oh yes.
Earl Warren: -- the statement of counsel?
Bennett Boskey: In the course of the trial after he have heard the witness.
Earl Warren: Yes.
Bennett Boskey: Because he was trying to move the trial on and it's in the record, there isn't any question that he said.
Tom C. Clark: (Inaudible)
Bennett Boskey: The other within his instruction to the jury at the case trial.
Tom C. Clark: (Inaudible)
Bennett Boskey: Yes.
Felix Frankfurter: How much leeway do you think it's proper for us or perhaps is unwise -- I don't regard those judge as my model of (Inaudible), even an unwise judge telling the jury his impression so long as he doesn't confine them or encourage them.
Bennett Boskey: I think a considerable leeway and I think also --
Felix Frankfurter: We and the federal courts, I know what state rule is.
Bennett Boskey: I think a considerable leeway that in the circumstances in this case, he had a very special kind problem that doesn't arise very often about the unavailable witness. So he -- he personally knew he is not a good witness. And he didn't do a thing to protect the defendant's rights here even tough repeatedly asked. Oh I see my time has expired.
Earl Warren: Do you have -- do you have one more statement to make that to -- to --
Bennett Boskey: I have one more thing I did want to say.
Earl Warren: You may -- you may raise --
Bennett Boskey: The point question was raise, I think, during Mr. Belcher's argument concerning whether all these are questions of local law and I would say in response for that that most of them are not questions of local law at all. If you look at the table of contents of this brief, you'll see that the grand jury points are not points of the local law at all. The evidence points are largely points not of local law with some, I would admit, had mixture of local law. But at the same time, they stem out of decisions of this Court, which I think have gotten the law of -- on the wrong track. The Mattox -- old Mattox's decision in 156 U.S. which Mr. Belcher I think in response to Justice Whittaker's decision said the Government supports that decision. The fact is the Government doesn't say a word in its brief in support of that decision. And if that's the Government position, it hasn't given the Court the slightest help on why there's any rationality on that. And in my brief, I said that the dissent of the Mattox case is correct. I say that furthermore that the Uniform Rules of Evidence bears out on that the -- which had been approved by the National Conference and Commissioners on Uniform State Laws by the American Bar Association and by the American Law Institute. And specifically Mr. Justice Whittaker, in answer to the question you have raised, why under what circumstances this document could have been admissible anyway. Rule 65 of the Uniform Rules of Evidence cited in reply brief is clear and explicit. It's dealing with exceptions to the hearsay rule and first trial testimony is such an exception. And it says, “Evidence of the statements or other conduct by a declarant inconsistent, with a statement received in that evidence under exception to Rule 63, is admissible for the purpose of discrediting the declarant though he had no opportunity to deny or explain such inconsistent statement” and it says this is the modern rule in the comment accompanied.
Charles E. Whittaker: Do you think that's applicable to this situation for (Inaudible) simply ex parte, awkward for receiving evidence a signed statement to impeach the testimony given in a former trial?
Bennett Boskey: I think it is clearly applicable that if they wanted to go ahead with the FBI check of the handwriting, counsel give them every opportunity to had any other effort in one -- have wanted to make any other effort to check the source of the statement it could easily have been done, but that was cut off because four times, Judge Holtzoff said, “I won't admit it.”
John M. Harlan II: I'd like to ask you one more question if I may Mr. Chief Justice's permission?
Earl Warren: You may.
John M. Harlan II: Assuming you have been advised by the Court of Appeals that they were treating this application in a way the Government says that they affect (Inaudible), apart from any protest that you might have had that you are being deprived with that course of procedure of oral argument, was there anything more that you would have wished to submit to the Court of Appeals in the way of briefs or authorities than what you had submitted?
Bennett Boskey: Yes, I would have wanted to submit an argument more on the merits on the grand jury point where I have said in my memorandum several times that it was clear, I had a substantial question that the development of it could have wait the argument on the merits and the briefs on the merit.
John M. Harlan II: That was stated in your memorandum?
Bennett Boskey: Yes and there were the things I would have wanted to do. Mr. Belcher said counsel had come to grips on all the points. The Government never dealt with two of these points in the Court of Appeals. The corroboration point came up afterwards. It was in my memorandum to which the Government never filed a reply. The Government and the Court of Appeals never dealt with the point relating to views or comments by the prosecutor.
Earl Warren: Mr. Boskey, may -- may I ask you and just to briefly recapitulate, if you will, the things that a defendant in the position of your petitioner here has been deprived of by reason of the fact that he didn't have a -- an appeal granted to him.
Bennett Boskey: I shall be glad to, Mr. Chief Justice. First, he's been deprived of an opportunity to designate a record which would be on orderly record on appeal. You can't do that until you get an order allowing you to appeal in forma pauperis because the District Court won't receive your designation and send the record up to the Court of Appeals. Now, does that matter or doesn't? There are some cases where you have a very simple record, it won't matter. The Government says in the footnote what doesn't matter because the Court of Appeals goes and gets the record anyway. Well, I've seen some of the records they get, I don't what they do with them, but there are bundles of papers. They are full of subpoenas and other irrelevant documents. There's been no effort made at that stage to sort them out, designate them, and put before the Court of Appeals where they ought to be there, that's just the beginning. Second, we were deprived, as we made clear of the full briefing on the merits. Now, it's true there are two preliminary memorandums here, neither was to be conclusive, neither involves the development of these points as they should have been developed in the full brief on the merits, although steps were made in that direction. I might say, if counsels feel that they are under a burden to write full brief at a preliminary stage it seems to me a very difficult burden to impose on counsels and directly contrary to what Ellis says which is the no preliminary showing of merits required. Third, we were deprived of full oral argument in the Court of Appeals and in fact we were deprived all oral argument in the Court of Appeals. This motion, as I think it's now become quite customary in the Court of Appeals, was not put on the argument calendar. So we never had our argument on the Court of Appeals. We never came to grips with the judges who were passing on the case. We didn't know how they where looking at the documents. What was on their minds? What kind of a case we can make to it? Fourth, we were deprived an adjudication on the merits in the Court of Appeals. We don't know what the Court of Appeals decided. We don't know what they considered. We don't how they considered it. We don't know whether they considered it in concert or singling. That is not the treatment which have (Inaudible) appeal gets in the Court of Appeals, and that's what we are entitled to. So that if after all of that and we had that kind of treatment on the merits, we then wanted to file a petition for certiorari. This Court then wouldn't have had any difficulty knowing what the Court of Appeals had and hadn't done.
Earl Warren: Thank you.