Chappelle v. Greater Baton Rouge Airport District

PETITIONER:Chappelle
RESPONDENT:Greater Baton Rouge Airport District
LOCATION:Environmental Protection Agency

DOCKET NO.: 76-352
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: State appellate court

CITATION: 431 US 159 (1977)
ARGUED: Apr 25, 1977
DECIDED: May 16, 1977

ADVOCATES:
Herschel C. Adcock
Joseph F. Keogh

Facts of the case

Question

Audio Transcription for Oral Argument – April 25, 1977 in Chappelle v. Greater Baton Rouge Airport District

Warren E. Burger:

We will hear arguments next in 76-352 Chappelle against Greater Baton Rouge Airport.

Mr. Adcock, I think you may proceed when you are ready.

Herschel C. Adcock:

Mr. Chief Justice may it please the court.

My name is Herschel Adcock and I represent the appellant in this matter E. C. Chappelle, Jr.

This is the case that is before the court on the constitutional issue in that a Louisianaa statute requires the ownership of property assessed within a parish in order for a person to be a member of the airport commission.

For period of five years, prior to the time the appellant resigned, he was an Executive Director and Secretary of the Greater Baton Rouge Airport District.

Mr. Chappelle was the airport for all intent purposes.

He ran the entire show.

With the airport commission giving him technical advise.

Mr. Chappelle then resigned his position as the Director of the airport and was appointed as a member of the airport commission.

Shortly, thereafter prior to the time that his appointment ran, East Baton Rouge Parish clerk summarily dismissed Mr. Chappelle from the commission after receiving a legal opinion that sends Mr. Chappelle did not own property assessed in East Baton Rouge Parish that he was not qualified to serve as a commissioner on the airport.

Based upon this notion Mr. Chappelle then filed suit in District Court in Baton Rouge.

Alleging number one that he did meet the qualifications that he did own property that had been assessed in East Baton Rouge Parish and it was proved in Court that he did own property on which he had actually paid taxes, but the Court held the sense this property was not listed on the assessment rules that he had not technically met the requirements to be a member of the airport commission.

Mr. Chappelle likewise the alternative that the court determine that he did not meet these qualifications raised the issue that the act which required the ownership property was unconstitutional and violation of the equal protection and due process clauses of the United States constitution.

On March 4, 1975; Mr. Chappelle was formerly denied his seat from airport commission.

On July 23, 1975 Nineteenth Judicial District Court ruled in favor of the City of Baton Rouge stating that indeed he did not have the right to sit on the airport commission because he did not have property assessed in East Baton Rouge Parish.

Mr. Chappelle then went to the next procedure he asked the Court of Appeal, the First Circuit Court of Appeal sitting in Baton Rouge to review the decision.

Once again, he urged the equal protection in the process clauses of the United State of constitution.

Once again, the Court of Appeal aligned to stay up with the District Court stating they own no assessed property and was therefore not qualified to sit as a member of the airport commission.

Mr. Chappelle had no direct right of appeal to the Louisiana State Supreme Court but asked the Supreme Court to review this decision by the Court of Appeals.

The Supreme and a memorandum decision denied the writ with one of the Justices stating that the writ should be granted and he cited the case on which we principally relied Turner v. Fouche.

We held before the court, we believe three questions.

The first one is the case of Turner v. Fouche, does it mandate that this statute in Louisiana that requires the ownership of assessed property, does it mandates this statute destruct in violation of the Equal Protection clause of the Fourteenth Amendment.

Secondly, the court should determine whether or not this act is in violation of the due process clause in that the requirement of the ownership of assessed property has no reasonable basis as to the qualifications of a person to sit on the airport commission.

What sort of a priority counsel does the Greater Baton Rouge Airport District exercise?

Does it exercise general governmental authority, or is a kind of specialized district.

Herschel C. Adcock:

It is a specialized commission that deals with the day-to-day affairs of the airport itself.

Why would not that be governed by those Scheuer and Calero cases which we handed down about three or four years ago, which is I noticed neither party’s cites in their briefs, where we said in the case of the special improvement district, you have the one man, one board rule and the property requirements did not apply.

Herschel C. Adcock:

This body is a public body that sits and actually approves leases and deals with the day-to-day affairs of the airport it is a public appointed body they serve for a given term.

Well these were in that sense public bodies, but I think they were described as kind of special use districts rather than districts having general governmental powers.

Herschel C. Adcock:

Yes sir.

I am not familiar with the cases, Your Honor.

The third question we think this court should consider is whether or not a citizen has the constitutional right or fundamental right to hold an appointed position?

That is whether he should have the right to be consider to it an appointment of a public body and whether or not the ownership of property should come into he picture at all.

It is our position that at this court, oppose a Louisiana statute that permits the state to stay to require the ownership of assessed property.

This will just open the door for additional classifications and will completely undermine the protection that citizens have to be considered and appointments to public offices.

Well we have held, we have held just in the past couple of years, residency requirements for running for office of five and ten years in length, how would you distinguish those, if every citizen has a right to be considered for public office?

Herschel C. Adcock:

The residency requirements can be argued as having a reasonable basis if someone — if you do not have a residency requirement it would be too difficult for the boarding officials to keep up with citizens.

You could have someone who would move to one place and vote and to different areas and vote.

Well I am talking about a New Hampshire law, which we upheld about two or three years ago, but does that require 15-year residency requirement before you could run for governed.

Now that certainly is not based — that is not kind of time period that should talking about eliminating fraudulent voting and that is just a long term attachment of the state that was required and we upheld it.

Herschel C. Adcock:

Okay, the to lay out at a place for a certain period of time, I believe is a rational basis to determine whether someone is qualified to sit in a public position, but to require to that person owns property assessed any parish in order to be considered for a public office is in violation of equal protection laws of the time.

But, it does not have the same motivation or at least something in common with the residency requirement that is an attachment to more or less permanent relationship to the community.

Herschel C. Adcock:

I do not believe that the ownership of the property can be considered as inductive of someone having an attachment to a particular area because —

Now he question is whether it is rational for the State of Louisiana to think so?

Whether that’s in adequate basis.

Herschel C. Adcock:

Yes.

Well the State of Louisiana apparently addressing this act both that it did have some rational basis, it is our position that it does not that the ownership of property does not make one better qualified to sit as an airport commissioner, especially in light of the facts that we have before the court here today.

Here he have an expert in the field of aviation, a man who had run the airport for five years, who had resided in the area for great length of time, yet he was denied a seat on the airport commission because he did not —

Your argument is special qualifications statutes cannot be made, can they to reach every situation when there is a line drawing process?

Herschel C. Adcock:

No sir, I was given that as an example of how this statute does discriminate against persons who are highly qualified, here we have a public body making decisions for the entire public of Parish of East Baton Rouge, and the Greater Baton Rouge area.

These are citizens throughout the Parish are this area of the state who have great need for an adequate airport.

Does this requirement apply any other public office in Louisiana?

Herschel C. Adcock:

Not to my knowledge sir, not to my knowledge.

Is there legislative history why they attested to holding this office?

Herschel C. Adcock:

No one seems to be able to tell me.

I have examined the records, when this deal was presented to the legislature in 1969 and there is nothing in there stating why they had a requirement of the ownership property.

Is he eligible to be considered now?

Herschel C. Adcock:

According to the opinion of the lower court, and of the Parish attorney he would not be because he during the time, that he was dismissed, and the time this case actually came to trial and the tip to aviod the payment of tremendous fees and cost to Mr. Chappelle he did go and buy a property.

The court ruled that that was allude question that the statute required the ownership of property at the time he was appointed because he did not owned the property.

Well suppose he had this tougher side now, there will be a vacancy, could he be considered now?

Herschel C. Adcock:

If this statute is remains on the books he could not because he does not own property, he has since dispossessed himself of this real estate.

Well I suppose he had not, could he then be considered?

Herschel C. Adcock:

Yes sir.

Why does he want a job, is it a compensatory job or is it….

Herschel C. Adcock:

It is not a compensatory job.

I asked selfishly because I have one time served in an airport board and I do not quite understand what the fuss is all about.

Herschel C. Adcock:

I will have to go outside the record to a certain extend although it is the part of the state records.

Mr. Chappelle has a long record of being connected with aviations.

He is a retired Air Force Colonel he has served in numerous capacities with airports in the past.

There is a political struggle between the mayor and the another politician in the area and he chose the wrong friend, apparently.

He wanted to remain in the field of aviation, so he would have the opportunity to attend seminars that will keep him abreast of the changes in the field of aviation.

That was his principle reason for warning.

We believe that the language we have cited on our brief on page seven, in the Turner V. Fouche case is one should control the situation and I will quote the portion of it.

The appellants and the members of their places do have a federal constitutional right to be considered for a public service without the burden of ambitiously discriminatory qualifications.

We submit that this is ambitiously discriminatory qualification that is a qualification that you must meet of owning the property assessed and bear in mind that the lower court did hold that Mr. Chappelle owned the property.

It did hold a property as determined Louisiana means either real or personal property, they held that he own property located in East Baton Rouge Parish.

We are not just talking about land, we are talking about the property, but the mere fact that it was not listed on the assessment row was the issue that the Court of Appeals used in which to uphold the lower court.

We further submit that there is no rational basis for the ownership of property in that there is no — this does not make a person better qualified be an airport commissioner simply to have his property listed on the assessment rolls, as we pointed out in our brief.

Let me ask there Mr. Adcock, what governmental bodies under Louisiana law may impose taxes to fund airport bombs, if you have such things.

Any of these organizations; The Parish Council, The City Council, The Airport Authority?

Herschel C. Adcock:

Yes, the Airport Authority, The City Council can impose taxes, and of course the state legislatures.

Does the Airport Authority require the consent of any other governmental body before it may assess the tax?

Herschel C. Adcock:

I do not believe, Mr. Keogh, the Parish attorney can better answer that question, Mr. Justice.

Mr. Adcock, what do you with the language that is against use, it is set back in 1943, and more than 40 years ago this Court determined that an unlawful denial by state action of right to state political office is not a denial of a right of properties or liberty.

Herschel C. Adcock:

We believe that the line of cases, Turner v. Fouche and the other case…

It cites this case, with the proof.

Herschel C. Adcock:

With the proof.

We believe that the Turner v. Fouche, what we are sitting on is the issue of whether or not there is compelling state interest for requiring this classification.

Now, a person does not have a fundamental right to be on the Airport Commission, but he has the fundamental right to be considered for this position, and he cannot be denied this right.

Herschel C. Adcock:

If such denial runs a file with equal protection and due process clauses at the United States Constitution, this we submit has happened in this case.

First of all, the Turner v. Fouche case.

It does not have a property, right, what does he have?

Herschel C. Adcock:

He has a — it is a fundamental right, rising from the constitution, not to be discriminated in consideration or appointment to this public body.

If there was a compelling state interest for requiring this classification, yes perhaps.

Well, in this known case the man with the (Inaudible) because he was a Negro, and this court said that was not enough.

Herschel C. Adcock:

Well, we believe this court has overruled that finding in the Snodden case in many areas, and we further submit that this statute — no sir, we submit this statute could have Justice Wale said he must be a white citizen owning property assessed.

It would have been a little easier.

I do not believe our State Court would have permitted that statute to stand when it was attacked on the constitutional grounds.

Well, the statute does say that when you go on to tax rolls, you have to go on according to your race.

Herschel C. Adcock:

I am not familiar with that.

I am not going to say it does not, but if it does, I, being a Louisiana citizen, I was not aware of it, and it is hard for me to accept that.

Finally, and as I have said at the outset, we do not believe that there is a compelling state interest for the upholding of this statute which prohibits any person from being considered for such appointment.

Consideration is the key, not the right to be on that commission, but consideration for, because we have here a person that I think all parties would admit is qualified to serve in the Airport Commission, had he not been, he certainly would not have been appointed.

But we have a person who was stricken by the Parish Clerk simply because he did not own property assessed, and he is a Baton Rouge Page.

We respectfully request this Court to strike that portion of Louisiana Act 151 of 1969 as to be unconstitutional, thank you.

Warren E. Burger:

Thank you Mr. Adcock.

Mr. Keogh…

Joseph F. Keogh:

Mr. Chief Justice, may it please the court.

My name is Joseph Keogh, and I represent the appellees in this matter.

I spoke to the clerk earlier, and if I my take about two seconds of the Court’s time, I want him to verbally amend a typograph, we are on page seven of the appellee’s brief.

The phrase as it appears is not the way that it was intended to be printed.

The phrase should read.

Warren E. Burger:

Where do we find it first?

Joseph F. Keogh:

Well, the second paragraph of page seven.

It is implicit to my defense before the Court, because we do not call with the Turner case in the way it reads.

It read the Turner rule, and we then result in a further unwanted intrusion on legislative authority.

It should read, and further result in and unwarranted intrusion, because we do not feel like the Turner case was an unwarranted intrusion on the legislative authority of the State of Georgia.

In fact, we embrace the Turner v. Fouche case, and we embrace all of the decisions that stem from that line of jurisprudence.

Yet, submit to this honorable Court, may it please the court that as has been pointed out by some of the questions already, the case that we have before us does not fall within the ambit of equal protection as said forth in Turner v. Fouche.

Joseph F. Keogh:

The essential part of the case that the appellants, I truthfully believe have misstated unintentionally of course is that this was a fundamental right, and all of our research indicates that there are a lot of fundamental rights that this Court has set forth; marriage, appropriation, vote, equal voting power, interstate travel, First Amendment rights, all of these are set forth in page eight of appellee’s brief.

Access to the ballot as a candidate is arguable, whether that has ever been clearly annunciated as a fundamental right or not, but there are several cases interpreting it; Bullet v. Carter, Liben v. Parish.

Access to divorce courts, again arguable as to whether that is a fundamental right.

Criminal courts, counsel and transcript, of course, privacy of some types.

We submit, Mr. Chief Justice and members of the Court, that this is not a fundamental right that Mr. Chappelle had to serve on an appointed Advisory Body, the question was asked I think by Mr. Justice Marshall perhaps as to whether or not this Board of Commissioners had any final authorities.

The question was referred to me since I have been advising these people for nine years, they do not have any final authority.

The Act which we reproduced in its entirety in our brief sets forth the fact that this bodies of authority is essentially of a recommendation level, they recommend to the Parish Council which acts as the Airport District.

It must act affirmatively, suppose it does not act at all, what happens then?

Joseph F. Keogh:

If it does not act affirmatively, it has a meeting every month, the Act sets forth that it must have at least one meeting a month, and it transacts as transfer of funds, that it transacts day-to-day business of the Director that he brings before them, pass resolutions and so forth.

Now, the way the Act sets up this Commission, it’s a two tier process, and I am not intentionally borrowing on Mr. Justice Marshall’s language two tier process in the Mergia case, the Mergia case used that concept, but it is a two tier process.

This Commission after it acts, the council which is a dual sitting body; it sits as a Parish Council, which is a single member districted body that governs the entire Parish and the City, because we have a combine form of government in Baton Rouge.

It recesses as a Parish Council, and then reconstitutes itself with the same membership and so forth as the governing authority of the Airport District.

So all the decisions that are made by — resolutions, — this is all found in the Act, made by resolution of the Commissioner, is either approved, rescinded, or disapproved, or suspended by action of the Parish Council sitting as the Airport District.

So consequently, we view it as definitely not the type of Board of Commissioners that one is entitled to serve on as a matter of fundamental right.

Mr. Keogh, you have been representing the Commission or?

Joseph F. Keogh:

The Parish and the city, Mr. Justice.

Since the 1960, were you doing that when this Act 151.

Joseph F. Keogh:

I certainly was, Mr. Justice.

Can you tell us the reason for this requirement?

Joseph F. Keogh:

Yes, I can.

I think the legislature adopted these as minimal objective criteria as opposed to subjective criteria, which one finds in cases like Turner V. Fouche, and one, to establish some nexus with the Parish.

Well, one had to be an elector as well as…

Joseph F. Keogh:

Correct, Your Honor.

The owner of assessed property.

Joseph F. Keogh:

Right, two qualifications only; you had to be a qualified elector and…

Which he was, the qualified elector would, why was not that enough, I am curious?

Joseph F. Keogh:

Well, the legislature in its wisdom may not have — and I submit to you in all candor, may not have been as wise as we today in 1969 about trying to set a requirement to fulfill the state purpose of connectivity or nexus to the Parish to show an interest in the community such that one could not go out and appoint a transient at the Greyhound bus station for example.

William J. Brennan, Jr.:

Yes, but I take it the Mayor — are the Mayor and Parish Council members required also to be owners of assessed property?

Joseph F. Keogh:

Those are, but they are elected, Mr. Justice Brennan, they are elected, and they serve a legislative purpose; they enact laws, ordinances, and they serve also as the other bodies such as…

William J. Brennan, Jr.:

And who appoints the Board of Commissioners?

Joseph F. Keogh:

The Council appoints the Board of Commissioners.

So it is really rather confusing, because the Council could appoint anyone who they wish, and this is why I argue in the brief, Mr. Justice Brennan, and Mr. Chief Justice, and members of the Court that, really I believe the legislature looked at this not only as establishing a reasonable criteria to hold a nexus with the appointee to the Parish, on interest of the community, but moreover, and more of a subtle reason, but more realistic, is to operate as a restraint on an unbridled authority of the Council to make an appointment of anyone whom they desired that has a — well, not always, it might be someone just passing through town.

They could be — is there is a personal property tax in this area?

Joseph F. Keogh:

Yes sir, exactly.

Byron R. White:

Almost everybody has itself personal property.

Joseph F. Keogh:

And Mr. Justice White, this is the point that appeals to me…

Byron R. White:

But it is much of a limitation, on the discretion of the…

Joseph F. Keogh:

No sir, it is, it really is not.

Byron R. White:

So it is not much — say one of its purposes was to limit the discretion of the City Council, it was not much of a limitation.

Joseph F. Keogh:

It is very minimal, and this is why we get to the three areas that Mr. Justice Marshall talked about in the Mergia case, if we get that deeply into looking at this type of job.

Byron R. White:

Can I ask you, I am sorry to interrupted, does the Commission, the Airport Commission have taxing authority?

Joseph F. Keogh:

No sir, it has the taxing authority if approved by the Council, it has no primary authority.

Byron R. White:

And it does not have bonding authority?

Joseph F. Keogh:

It has bonding authority if the Council approves it.

Byron R. White:

But it does not have it?

Joseph F. Keogh:

No sir, it does not have it, no sir.

You see the way as I try to explain…

Byron R. White:

And just because they have say some taxes will be necessary for an airport improvement does not mean that the tax is going to be approved.

Joseph F. Keogh:

Not a bit Mr. Justice White, in fact, the fact of the matter is that every action they take, at the very next Council meeting appears on the Council agenda under the heading of Airport District Business, and this body…

Byron R. White:

But it does have the responsibility for running an airport, is that right?

Joseph F. Keogh:

Well, the Director has that responsibility, but it has responsibility for…

Byron R. White:

Setting policy.

Joseph F. Keogh:

Setting policy, yes sir.

And if the Council objects to that policy, when it sits at the Airport District, it of course has the power under the Act of 1969, 151.

Byron R. White:

If the Airport is badly run, the commission shares responsibility for it?

Joseph F. Keogh:

And the council, because you see, the commission is essentially a body of an advisory nature.

With no final authority whatsoever to even run the airport, if the council as the District, sitting at the District commission….

Byron R. White:

How long do you have to be a resident of Parish to be an elector you can qualify to vote?

Joseph F. Keogh:

Very minimal, I am not sure.

I think it’s 6 months Mr. Justice White, I believe it’s 6 months is very minimal length of time but the point…

Harry A. Blackmun:

Is it possible to have the personal property tax will not be on the Assessment Roll?

Joseph F. Keogh:

Now this is the fine point of fact that I can speak to — it is not in the record because we did not send up the — lets perhaps in the transcript we did not send up the pleadings because we thought would just stick to the constitutional issues but it is possible that sales tax on something like, of course automobile.

Mr. Justice Blackmun but the problem here is that State law requires that if I own any piece of movable property, and this is not restricted, the previous Court decisions in the courts below have all held that this does not require someone to own real estate like free holders in the Turner case, or any type of property can be real, corporal, in-corporal, the movable or immovable, you can own one sticker furniture and technically the law of the State of Louisiana says that one that owns furniture must put their name on the Assessment Roll.

It is the voluntarily act of assessment, just as we voluntarily pay our income tax.

This does not apply to an automobile.

Joseph F. Keogh:

Yes sir.

Thurgood Marshall:

You can only put it down, Why do you have to put your race down.

Joseph F. Keogh:

Yes Sir, you can, then of course we have a permission that….

Thurgood Marshall:

Why do you have to put your race down?

Joseph F. Keogh:

Race, opposite race —

Thurgood Marshall:

Race.

Joseph F. Keogh:

No, sir I did not know that Mr. Justice Marshall, that is something new to me, I did not realize.

Thurgood Marshall:

It is in the jurisdictional statement of Page 24, quoting from the Section 1957 on your code, the assets throughout the states (inaudible) so far as practical where the person with the property is assessed by them, remain figured on the Assessment Roll are white or color.

Joseph F. Keogh:

I can not, I find that hard to believe, our legislature some…

Thurgood Marshall:

I do to…

Joseph F. Keogh:

I find it hard to believe Mr. Justice Marshall.

Our legislature, some two years ago spent the considerable amount of time and money through the Legislative Council to go back through every law that was on the books on the State of Louisiana and purged that type of material from the law.

Thurgood Marshall:

So, they never suspect.

Joseph F. Keogh:

They missed this one.

They never could and — Justice Marshall quotes also goes on and requires that that fact be noted, make a mention there on the Assessment Rolls.

So that I suppose the requirement of owning property assessed in that Parish requires that the written records disclose the race of that person.

If it could not meet…

Joseph F. Keogh:

We are not prepared to respond to that question?

But if it is not – if that is not the reason and of course you said, you are concerned about the patrons in bus station but they are not going to be there for six months, you do not suppose.

What do you suppose this does over and above the elector requirement.

What does it add?

Joseph F. Keogh:

Well, we feel in defense of the Legislature that enacted it, that the objective of course, as an objective test is to create some additional nexus to the Parish in the sense of one owning property would tend to be more interested in affairs in the airport.

Supposing, we had an example — a young flight instructor who did not own any property, lived there on a month to month basis, and just out of the airport or something like that, why should he be disqualified as opposed to someone happens to own an automobile?

What is the difference?

Joseph F. Keogh:

This is what I said earlier, that we are here today and I will be the first to conceive this fact, can think of a lot better reasons to have put in the law but still these are not wholly irrelevant and I think to test, once you get beyond the strict….

Byron R. White:

Would you agree that it is the language, instead of saying an owning property assessed and supposing you said and having read here, would that make it alright?

Joseph F. Keogh:

That’s a closed classification.

Now, this is the important part that Mr. Justice White brought up, and that is that this gentleman could have opened his classification by buying that single sticker furniture.

Red hair is a closed —

What if they said, having property assessed of a value over $1000?

Joseph F. Keogh:

I think that too would be a closed classification because one would then be penalizing the people that too poor to own $1000 worth.

How about over $500?

Joseph F. Keogh:

It becomes the question of degree?

So, the nexus is you want to be sure that this person owns at least $30 or $40 worth of property.

Joseph F. Keogh:

They intend to remain in the Parish and have some interest in the commission.

We have submit…

But you think that owning $30 or $40 worth of property is better evidence to that than six months residence.

Joseph F. Keogh:

No sir.

I concede it again as I have before that we can today come up with a lot of better ways but the rule is…

You also concede that there must be some reason further for this requirement in order for it to be constitutional.

Joseph F. Keogh:

Yes and I think that reason is simply that the Legislature thought that this together with the qualified elector classification would certainly indicate that the people that are appointed have some good intention to remain in Parish.

Under personal property tax laws, is there is a minimum figure that is tax exempted?

What point in value you start got paying personal property tax?

Joseph F. Keogh:

I can not tell you.

But is there an exception to this like the federal income tax?

Joseph F. Keogh:

I am certain, there is.

Whatever that is, it is an amount over that so it better be less than $1000 or you concede in your case…

Joseph F. Keogh:

One could appoint, if you like Federal Income tax, I would assume that if report your income and then you report your property and then you take off the deduction.

Did you not suggest to me that if it is a $1000 or more that would be unconstitutional?

Joseph F. Keogh:

Sir, I said that might be a closed class and as such it would be very suspect.

You goes back to the strict scrutiny test and…

We really do not know the dimensions of this class bceasue we do not know here the exemption starts.

Joseph F. Keogh:

Correct.

It would still be assessed, that is your point.

Joseph F. Keogh:

Yes, it would still be assessed and would be assessed in the point is that whether it is for $5 or $100, it’s a not a closed classification.

Joseph F. Keogh:

The gentleman could go out and become a member this class quite readily, there is no inference in this case, for an example, as it was in Turner of an invidious racial discrimination.

This Board of Commissioners is composed of black and white and the Chairman is black, so, we get entirely out of these considerations of Equal Protection of the Law, but we really get into a consideration of Cameral Legislature, it would please the court, Cameral Legislator set something as a qualification that is not wholly unreasonable, certainly not the best.

This is what I am trying to say to you Your Honor, it is not the best.

We can think of a lot better ones today, with the perspective of since 1969 but is it wholly irrelevant and I think that what it is.

I don’t think it is wholly.

Is that the way you distinguish Turner purely on race?

Joseph F. Keogh:

No, sir.

How else do you distinguish it?

Joseph F. Keogh:

I think in the Turner case, you have a situation where the court Your Honors recognized that in that case there was an invidious discrimination by virtue of the fact that, I am trying to recall exactly the language was, about the decision you believe refer to and I underlined those words.

Well, never mind.

Mr. Keogh, May I try again?

Joseph F. Keogh:

Yes, of course.

Is all tangible personal property assessed?

Joseph F. Keogh:

Yes Sir.

So, that one sticker furniture you mentioned would have to be reported…

Joseph F. Keogh:

Yes Sir, it is subject to assessment, but it is a voluntarily assessment, one is required to report it to the assessor.

As of the first day of the year or.

Joseph F. Keogh:

Yes Sir there is a reporting period and I think it is the first day of the year and of course if they do not, then of course, the commissioner has no way of knowing that tax assessor —

Your Honor, Mr. Justice Blackmun, on the part that I was – want to refer you to – using your Turner case.

Your Honors kept pointing out that you were not prepared to hold that the Georgia requirement of the freeholder being the only person that can serve as a member of the Board means that according from the decision, the possibility that other circumstances might prevent themselves and with your property qualification for office holder, office holding could survive constitutional scrutiny.

That plus the fact that in Turner, there was a requirement that one be an of owner of land, immovable real estate.

That is what the word freeholder was defined as in the decision, and moreover in Turner, the body that was being constituted was more of what we have called a political body making political decisions namely the Board of Education.

This Board Of Education was a far different instrumentality than the Board Of Commissioners in East Baton Rouge Parish.

It had final authority, Mr. Justice Blackmun, it had these discretionary powers.

It was in fact a legislative body.

This is something we do have in the instant case.

Those are the three basic distinctions that I have made to show that this is not of the same category as the Turner case.

And in conclusion, we just have to submit, may it please the court that in this particular situation, Turner is not applicable, and here we have a commission which, if the legislature of the State of Louisiana cannot set these not wholly unrealistic basis, wholly irrelevant then, we have a bunch of other commissions that are going to be in trouble because there are lot of these types of requirements that are made to service on zoning bodies, of an example Mr. Chief Justice.

Zoning bodies and many others and we submit that is why the courts below should be sustained.

Warren E. Burger:

Do you have anything further Mr. Adcock.

Herschel C. Adcock:

Yes Sir, very briefly, Mr. Chief Justice, may it please the court.

Counselor stated at the outset that he did not see or we get the notion of the fundamental right.

I want you to once again, direct you to Page seven of our brief.

The language from the Turner v. Fouche case.

The Court specifically held that the state may not deny the sum.

The privilege of holding public office that extends to others on the basis of distinctions that violate federal constitution guarantees.

We submit that this is a public body.

Contrary to what Mr. Keogh said, if it was just sitting there what is the purpose of having it?

This body can enter into the leases where the parish’s property is leased to persons.

The RentaCar people, the other airport hangers, are all leased and this body is the one that enters into those leases.

It can spend money.

It can authorize the expenditure of different clients, and we further submit that this requirement is one that has found its way in a statute and there is no reasonable basis, for instance, there is no requirement that the Director Of Finance or the Parish of East Baton Rouge own property assessed in Louisiana, East Baton Rouge.

There is no requirement that the Director of The Airport own a property assessed in East Baton Rouge.

These are appointed positions and there is no requirement that the Parish attorney who is likewise appointed own property assessed in Parish of East Baton Rouge.

I take it though that the Parish council, — he is elected.

He does not have to own property but if he is to be appointed to the commission, he has to own assessed property.

Herschel C. Adcock:

That is correct.

That is correct under the dictates of this statute.

We have a situation here where Mr. Chappelle did actually own properties which taxes were paid, the could found that he did owned a property and that he paid taxes but the mere fact that this property was not listed on the Assessment Rolls was the means they used to disqualify him and remove him.

You said that there is a voluntary system or your friend did any taxpayer can get himself on the Assessment Rolls without much difficulty, can he?

Herschel C. Adcock:

Mr. Justice no one does it.

This is a statute that is sitting on the books and I know of no person.

Maybe you need to draw them to statute then.

Herschel C. Adcock:

Yes Sir, maybe there should be a requirement of something that is enforced, but this is a statute.

You mean nobody files a return.

Herschel C. Adcock:

No Sir.

No one files the return.

The exemption is so great that there is no personal property tax is except with the..

Do you get anybody on the board then, on the commission.

Herschel C. Adcock:

The real property must be on the taxing rolls and I truthfully believe that this is what the legislature meant.

Herschel C. Adcock:

However, property as its defined in the Louisiana and most of the jurisdictions has — it is either personal or real property.

Do you accept your opponent’s distinctions distinguishing Turner as he did on the three prepositions?

Herschel C. Adcock:

No sir.

I truthfully believe —

Do you think that it applies or has no relevance here?

Herschel C. Adcock:

I think Turner applies to this decision as it is clearly on thought, as is any decision that I would want to rely in my opinion.

At least one member of your State, Supreme court felt so, didn’t it.

Herschel C. Adcock:

Yes Sir.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.