Citizens To Preserve Overton Park v. Volpe

PETITIONER: Citizens To Preserve Overton Park
RESPONDENT: Volpe
LOCATION: Ohio State Bar Association

DOCKET NO.: 1066
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 401 US 402 (1971)
ARGUED: Dec 07, 1970 / Jan 11, 1971
DECIDED: Mar 02, 1971

Facts of the case

Question

Media for Citizens To Preserve Overton Park v. Volpe

Audio Transcription for Oral Argument - December 07, 1970 in Citizens To Preserve Overton Park v. Volpe

Audio Transcription for Oral Argument - January 11, 1971 in Citizens To Preserve Overton Park v. Volpe

Warren E. Burger:

Citizens to Preserve Overton Park against Volpe, Mr. Vardaman you may proceed whenever you are ready.

John W. Vardaman, Jr.:

Mr. Chief Justice, and may it please the Court.

This case was previously before Your Honors on December 7, at which time the parties engaged in extensive oral argument on petitioner's application for stay to prevent the construction of a large six-lane interstate highway through Overton Park in Memphis Tennessee.

After hearing argument, the Court granted the stay, granted certiorari, set the case for argument on the merits today.

As Your Honors will recall, this case arises under a federal statute, generally, referred to as Section 4 (f) of the Department of Transportation Act which provides that the Secretary of Transportation shall not approve a highway project which affects a public park such as Overton Park, unless there are no feasible and prudent alternative routes or unless the design includes all possible planning to minimize harm.

As we pointed out in the argument on December the 7, there are all alternative routes to that through the park, there are all alternative designs which would minimize harm to the park, designs admittedly possible in this case.

We have alleged supported that the proper determinations which are required by Section 4 (f) of the Department of Transportation Act, were not made and indeed even if they were made, they were infirm or legally invalid.

Since this Court granted certiorari, there have been two important developments in this case.

Immediately thereafter, the Solicitor General on behalf of the Secretary, filed a motion to remand in which he conceded that the courts below had erred in granting and affirming summary judgment on the basis of affidavits which merely characterize documents on which these determinations, he said, had been made.

We certainly agree that the summary judgment was wrong, but we have oppose an immediate remand because of the other important issues which we believe should be decided in this case.

The second important development which has occurred since we were here before, occurred approximately 10 minutes ago.

At that time, the Solicitor General handed me two pieces of paper, which purport to be affidavits which I understand he is attempting to file in this case at this time, one of which says that as an affidavit of Alan S. Boyd and which he says as a matter of fact that he did make the determination which we have alleged he did not make and which we have offered to prove that he did not make.

The second piece of paper which he has filed purports to be an affidavit of John Volpe that he made certain determinations.

Now I know that no president which permits a party to filed in this Court, at this stage in the proceedings affidavit.

I do recall that there was a case here, I believe in 1968 entitled Bumpers against North Carolina, in which the case, in which this Court, it granted certiorari to consider the validity of a warrantless search.

And as I recall that case during the course of the oral argument, the attorney for the state said for the first time in the proceedings that in fact the search in that case had not been without a warrant, that he had found the warrant after the decision below and I believe he attempted to file the warrant in this court.

As I recall the opinion in that case, the Court said, it's too late.

You make your record in a trial court and at that point you consider that's where these facts are tried out.

Potter Stewart:

Are you familiar with the case Giles against Maryland?

John W. Vardaman, Jr.:

Generally, I am not familiar with any aspect that would bear on this point.

Potter Stewart:

Well, it is a big aspect that bears very directly on this point.

John W. Vardaman, Jr.:

Well, perhaps if the Court would like, memorandum on whether this evidence is properly before the Court at this time, I would be happy to file a memorandum, but I think that this is an extraordinary effort in which -- the manner in which to present evidence in a case, particularly since we were not permitted, in fact, the Court of Appeals held that we were barred by this Court's decision in Morgan from taking a deposition which we had specifically offered, will dispute one of these affidavits.

If as we submit one of the crucial issues in this case, is whether the determinations under Section 49 (f) of the Department of Transportation Act have been made.

We think that it's undisputed that that is a crucial issue in this case then that issue should be tired out in the way disputed issues in fact are traditionally tried in lawsuit.

We should put on our evidence and they should put theirs on.

Each side's evidence should be subject to cross examination.

We should not try it up by affidavits filed in this Court.

Warren E. Burger:

These paper will be lodged and the Court will determine their posture at a latter date and if we need anything from you Mr. Vardaman will then indicate to you that -- we'll invite you come and offer it.

John W. Vardaman, Jr.:

Thank you, Your Honor.

With respect to -- I might add that in my review of these documents at the time before they were filed indicates to me that they do not fulfill the requirements of the department, the transportation order which was as I understand promulgated on October 7, 1970, which now requires formal findings, in cases under Section 4 (f) of the Department of Transportation Act.