England v. Louisiana State Board of Medical Examiners

PETITIONER:England
RESPONDENT:Louisiana State Board of Medical Examiners
LOCATION:Cumberland Hospital

DOCKET NO.: 7
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 375 US 411 (1964)
ARGUED: Oct 15, 1963
DECIDED: Jan 13, 1964

Facts of the case

Question

Audio Transcription for Oral Argument – October 15, 1963 in England v. Louisiana State Board of Medical Examiners

Earl Warren:

Number 7, Jerry R. England et al., Appellants, versus Louisiana State Board of Medical Examine — Examiners et al.

Mr. Brown.

Russell Morton Brown:

Thank you, Your Honor.

Mr. Chief Justice and members of the Court, while this case involves many profound considerations of constitutional law, at this stage of the proceeding, we are concerned only with the matter of procedure.

The question basically is, what is the proper procedure for a three-judge federal court, which has entertained an action, raising questions of the constitutionality of a state statute under the Federal Constitution when it has remanded the parties to the state courts to secure a state court interpretation of the statute?

The question as to procedure is, shall the parties be required to come to this Court for review of the state court decision or may they return to the District Court to complete the litigation in the first place?

This case was brought by a large group of chiropractors in the State of Louisiana.

It was initiated in May of 1957 for the purpose of securing a judgment that the State Medical Practice Act was first, inapplicable to chiropractors.

Second, that it was unconstitutional in administration and finally that as drafted and as applied, the statute itself was a denial of rights guaranteed under the Fourteenth Amendment of the Constitution besides the Privileges and Immunities Clause, but basically, Fourteenth Amendment rights are here involved.

The District Court declined to prorogue a three-judge District Court as was requested and ruled that because there was no diversity of citizenship and because there was no serious question of constitution or law, which had not been settled, the Court was without jurisdiction.

That was the decision of the District Court declining to convene a three-judge court.

An appeal was taken to the Circuit Court of Appeals for the Fifth Circuit and that court, by a divided bench, ruled that the complaint made out some cause of action and alleged a prima facie case of constitutional rights which had been violated.

Motion for rehearing was made and was the occasion for the courts writing a very extended discussion of the grounds by which the reversal was based.

Accordingly, in the District Court, a three-judge bench was convened.

The plaintiffs moved for summary judgment on a basis of voluminous documentation and information of a medical and scientific nature.

The court heard oral argument on all these points from both sides and without consultation or notice of any kind, proceeded to announce that it would abstain from passing upon the constitutional issues.

Some 27 years before, the state courts had decided that this docket was constitutional in an attack of somewhat limited but similar nature.

But what’s the effect of the state statute to make chiropractors subject to state license?

Russell Morton Brown:

No, Your Honor, it is not.

It makes them criminals.

If they attempt to practice chiropractic in the State of Louisiana —

Without a license.

Russell Morton Brown:

Yes, and they’re not entitled to a license under any circumstances under this statute.

Under no circumstances can a chiropractor ever qualify in the State of Louisiana.

He becomes a criminal while practicing or attempting to practice in (Voice Overlap) —

Earl Warren:

Why can’t he qualify?

Russell Morton Brown:

I beg your pardon.

Earl Warren:

Why can’t he qualify, I say?

Russell Morton Brown:

First, Your Honor, because the state statute requires that he take an examination and such subject to surgery and draw up some material, medical which they never use.

Second, the Board, which administers the statute, requires that no person can qualify unless he has a degree from a school approved by the American Medical Association.

Russell Morton Brown:

And of course, the American Medical Association does not, under any circumstances, recognize chiropractic as a type of treatment or one of the healing sciences.

The statute, we — we believe, if Your Honor please, that the Medical Practice Act of Louisiana actually does include chiropractic because it refers to medicine, all the healing arts.

It’s in very broad language.

It’s our position really that the application of the statute to chiropractor or to the science of chiropractic is not exactly in accordance with the terms of the statute.

Earl Warren:

Is this —

Russell Morton Brown:

But —

Earl Warren:

— is this an isolated statute or — or do you find that in other states, I don’t know — I — I —

Russell Morton Brown:

Yes, I’m —

Earl Warren:

— about it.

Russell Morton Brown:

— I’m going to answer that, Mr. Chief Justice.

In 46 of the 50 States, there are licensing provisions for chiropractic.

Recently, the State of New York, which was one of the four in the minority, has provided a licensing statute so that we have now only three States, including the new States of Hawaii and Alaska, which do not license chiropractic.

Of those three only in Louisiana, to the best of my knowledge and information, punishes these people as criminals and actual enforcement procedures, which my distinguished Louisiana associate has secured within the band of an injunction.

They have enjoined on federal constitutional grounds the prosecutions until this Court or until our federal tribunals can settle the constitutional issues involved.

Earl Warren:

The reason I asked that — the question is because I know in my State, in the State of California, for many years, they’ve had a —

Russell Morton Brown:

Yes, sir.

Earl Warren:

— a statute that required us to pass to — to pass exactly the same examination as MDs although they — they don’t practice healing arts in the same way.

I just wondered if it was — was — for general, but you’ve answered the question and —

Russell Morton Brown:

Well, thank you, Your Honor.

It does cover the question of what shall be exacted of a chiropractor since they use no surgery under any circumstances and do not believe in the employment of drugs in treatment of their patients.

Their position is that it’s totally and completely irrelevant to expect them to produce that kind of information.

Earl Warren:

Yes.

Russell Morton Brown:

I’m —

Arthur J. Goldberg:

Your position would lead me to say that the State could not (Inaudible) your position on the merits.

I realized that you’re (Voice Overlap) —

Russell Morton Brown:

Yes, Your Honor.

Arthur J. Goldberg:

It’s your position on the merits (Inaudible) medical care, licensing and practice (Inaudible)

Russell Morton Brown:

I would, at this point, if Your Honor please, say that that isn’t pertinent here and I mean no disrespect.

I would say simply that they haven’t constitutionally arrived at that position.

In other words, I believe that, possibly, the State of Louisiana or any other State could hold such hearings and make such investigations that its legislature would arrive out a decision that chiropractic or any other type of medical practice would be undesirable and outlawed and the State might well adopt such a policy but only on a proper basis after appropriate hearings and an opportunity to be heard by the parties to be effected.

Russell Morton Brown:

I wouldn’t go quite so far as to say that they could not outlaw it.

I simply say they have —

Arthur J. Goldberg:

In any event, your (Inaudible) procedure (Voice Overlap) —

Russell Morton Brown:

That’s correct, Your Honor.

I’m very happy to discuss the merits but I do feel that we have a tendency to get sidetracked a little bit and I mean —

Earl Warren:

By side (Inaudible)

Russell Morton Brown:

I — I have no objection, Your Honor, except that the procedural question isn’t an interesting one and it’s an important one.

It comes up in these questions that involve state action and I think the Court needs to clarify it.

I’m very happy to discuss any phase the Court (Inaudible) in a court.

I simply think that we haven’t yet arrived at the point where the merits are pertinent to our —

Arthur J. Goldberg:

(Inaudible)

Russell Morton Brown:

— yes, Your Honor, certainly that’s —

Arthur J. Goldberg:

(Inaudible)

Russell Morton Brown:

— that’s really the heart of the question here.

The point is that the Constitution in Article 3 Section 1 says the judicial power of the United States shall extend to cases arriving under the Constitution and laws made pursuant thereto in treaties made and to be made and so on.

This is the judicial power which is exercised by this Court.

The same Article 3 of the Constitution in Section 2 says that the judiciary shall consist of one Supreme Court and such inferior court says the Congress may from time to time (Inaudible) establish.

Now, there was a time in the early history of the country when the relative weight and functions of the state judiciary and the federal judiciary was not clearly expounded and understood and so we had such case as Cohens against Virginia in which the defendants or the appellants by writ of error had been convicted of selling lottery tickets under an act of Congress in the State of Virginia and they claimed that they were protected by the fact that Congress had enacted this statute and that they could therefore proceed.

Now, the State of Virginia and its authority said that the federal court had no authority whatsoever to review the convictions of the Virginia court and Mr. Justice Marshall in a very learned and helpful decision, which has a direct bearing here, said that we have this question of judicial power of the Federal Government, refers to the Supremacy Clause in the Constitution.

This is the supreme law of the land.

And therefore, the federal courts are vested with authority to inquire into any action taken under authority of the States to determine whether or not that state action measures up to the requirements of the United States Constitution.

Having decided that they had jurisdiction, they went on to decide that Congress had never authorized the sale of lottery tickets in violation of any state law in the appearance of conviction.

But that was, we might say, an original inquiry by Mr. Chief Justice Marshall into the role of the federal judiciary.

Now, having established that judicial power, granted under the Constitution, extends to a review of all action taken under state authority.

The Congress, he then found, had created these inferior judicial courts and invested them with authority to pass upon questions of constitutional right asserted as a bar to state court action or any state action.

When that happened, we went on from there to Martin against Hunter’s Lessee, which was decided by Justice Story and later on to a variety of other cases, which are cited in the brief and in which Mr. Justice Story says, in effect, Congress could not vest the state courts with authority to pass upon a federal constitutional right asserted under the Federal Constitution.

Now, when this action was brought, Mr. Justice Goldberg, in the state court, I beg your pardon, in the federal court, in the District Court, it was an attempt to vindicate a federal constitutional right.

Certainly, it was brought under a precise federal statute which said in so many words, jurisdiction shall be vested in the federal district courts.

That’s exactly what the statute said.

We’ve cited the chapter and verse of the brief.

Russell Morton Brown:

Now, the federal court after the remand, mind you, from the Fifth Circuit, was faced with a binding decision, which was the law of the case at that point, to the effect that this complaint set forth a valid cause of action under the Federal Constitution.

Instead of proceeding to judgment on the motion for summary judgment, which the plaintiffs had every legal right to ask under the Constitution and under the statute, they said, “We feel that since 27 years has elapsed since the earlier decision, we should not take it for granted that the state of chiropractic hasn’t developed and that the understanding of the State of Louisiana hasn’t changed and we feel we should have a current interpretation of the state statute.”

They also said, and this is, of course, in the record that it may be that the state court will find that chiropractic as chiropractic is not embraced within this Medical Practice Act.

Therefore, we won’t ever have to reach a constitutional decision or they may find that it doesn’t apply to chiropractics and should not apply to chiropractics and that the people who administer the Act are acting outside the scope of their authority.

In our (Inaudible)

Russell Morton Brown:

Oh, no.

(Voice Overlap) state law of question.

Russell Morton Brown:

Oh, no, not at all.

I don’t suppose they could limit the state court nor could they can compel the parties to resort to the state court.

They simply said, “We feel we should have a current interpretation.”

What I think, if Your Honor please, was ignored at that point was that the constitutional law provisions had been settled for purposes of this case in the Fifth Circuit Court of Appeals.

Arthur J. Goldberg:

(Inaudible)

Russell Morton Brown:

Yes, Your Honor.

Arthur J. Goldberg:

(Inaudible)

Russell Morton Brown:

Oh, I think, Your Honor, on the basis of what we now know as a result of this Court’s decision in the Button case, we could have come right up here.

It would have been my personal judgment at that time that since the District Court had retained jurisdiction, if I had been on the other side, I would have filed a brief in our position and said there’s a case pending below in the District Court.

I would have objected to this Court asserting jurisdiction, that is if I have been on the other side.

On the other hand, I think it was appropriate and proper.

And I might point this out that in these cases of abstention, it’s not to be assumed that this Court will grant cert in every certiorari in every case where you wanted to.

It’s far better, I believe, as a matter of practical procedure in the federal courts to go back into your trial court.

You may — you may find that more complete development of the facts necessary for example.

Or there may be some very great benefits to be obtained by discovering procedures in the District Court and it would might have be — well be premature to come here.

We could possibly have applied for certiorari but I would have —

William J. Brennan, Jr.:

(Inaudible)

Russell Morton Brown:

I beg your —

William J. Brennan, Jr.:

— you — you did raise the federal question in your state proceedings?

Russell Morton Brown:

Yes Your Honor.

The Louisiana counsel went into the state court and raised all the questions.

William J. Brennan, Jr.:

Was there a reason why he made that choice?

Perhaps you’ve mentioned it, I haven’t heard it.

Russell Morton Brown:

I would say this.

There was a reason and the reason would be that in every case, the rule of res judicata applies not only to questions that are raised in a particular case but which may properly be raised and it would be in proper procedure to end a race all these questions and obviously, it was what the District Court wanted because they wanted to know exactly what the view of the state court was on the questions presented by this —

William J. Brennan, Jr.:

On the federal constitutional questions as well?

Russell Morton Brown:

Yes.

Yes, Your Honor.

I’m sure that that’s what was intended by the District Court.

They wanted to see if the — for example, we — we approach it on this basis.

Let’s assume that the state court was persuaded by the eloquence and ability of counsel and said, “We feel that this statute does violate the Federal Constitution.”

That put an end to the litigation right then and there.

There —

Arthur J. Goldberg:

(Inaudible)

Russell Morton Brown:

Exactly, exactly.

William J. Brennan, Jr.:

Well, whether you had to or not, at least I take it Windsor would lead — that careful counsel I think would be better, was that it?

Russell Morton Brown:

Yes, Your Honor.

Now —

Byron R. White:

At least raise them whether you ask if it will be decided or not.

Russell Morton Brown:

I beg your pardon.

Byron R. White:

At least raise them whether you ask if —

Russell Morton Brown:

Exactly.

Byron R. White:

— it will be decided or not.

Russell Morton Brown:

Now, in the Button case, this Court said that while the court below has terminated its action and retained jurisdiction, the parties may come here because they’ve shown them a waiver of any rights in the state court and they’ve submitted the entire matter and come here.

We never did that.

We went right back into the District Court, moved to vacate the order of abstention if —

William J. Brennan, Jr.:

Well, there was another party in Button, you may recall.

Russell Morton Brown:

Yes.

We went back — into the District Court.

William J. Brennan, Jr.:

— you did go back to the District Court.

Russell Morton Brown:

Exactly, Your Honor, and this Court said that that was proper.

William J. Brennan, Jr.:

Well, I — I wrote the words. I don’t think I said it quite that way but (Inaudible)

Russell Morton Brown:

That’s the way I recall it, Your Honor but said that the party (Voice Overlap) go back into the District Court —

William J. Brennan, Jr.:

— you (Inaudible) suggest that was I meant — I presume.

Russell Morton Brown:

I — I emphasize, if Your Honors please, that there may be great benefits to be gained out of developing the facts and further discovery and clarifying the position of the two parties.

This presence of abstention is fine but I have to point out, and I hope counsel for the other side will confine the argument to — not to the merits or — I’ll leave the merits out and stick to this question procedure.

Under the statute, Mr. Justice Goldberg, Congress gave every litigant or every plaintiff a right to an opinion by a federal forum.

There was no intention that the federal courts could just slough off the responsibility imposed by the Judiciary Act of 1789 and say, “We’re going to let the state courts decide this.”

Now, Mr. Justice Marshall in the Cohens case said that if such would have be the case, we would have a hydra of government with decisions by 50 state tribunals or whatever number there was at that time, maybe 13, I think, by different state governments on the same question.

Today, we’ve got 50 state courts, which may render to 50 different decisions on the same constitutional provision.

Now —

Arthur J. Goldberg:

(Inaudible)

Russell Morton Brown:

Yes, Your Honor.

Arthur J. Goldberg:

(Inaudible)

Russell Morton Brown:

I believe so, yes, Your Honor.

Arthur J. Goldberg:

(Inaudible)

Russell Morton Brown:

I would say, Your Honor, that it didn’t occur.

I took it for granted and I’ve shown my counsel from Louisiana felt that the proper procedure was to go right back into the — this Court, which had regained jurisdiction.

Arthur J. Goldberg:

(Inaudible)

Russell Morton Brown:

No.

Arthur J. Goldberg:

(Inaudible)

Russell Morton Brown:

I’m very glad to confess that it didn’t occur, that we could come here by certiorari and have this Court entertain the matter.

Now —

Byron R. White:

What is the (Inaudible) you bring any aspect of the case in the Court that you already included on everything you could have raised?

Russell Morton Brown:

It’s my impression, Your Honor, I’m not a Louisiana lawyer, I — I practice here in the district, but it’s my impression that as a matter of general common law that your — that is the court statement of the rule res judicata, that is you’re not only excluded by or precluded by the questions you raise but all those which might properly have been raised.

Byron R. White:

So that the — in any — anytime the federal court abstains and you — and send you to the state court if — if the — if the res judicata rule is — is a — of a certain kind, they — the state law would prevent you from going back to the federal court.

Russell Morton Brown:

I think that that’s true if you —

Byron R. White:

And it might even enjoin you from doing.

Russell Morton Brown:

Well, I think that we have this kind of a problem, if I may.

We’ve cited cases here in the brief in which — there’s one case, (Inaudible) against the State of Illinois and was decided by the District Court out there but this radio announcer was found guilty in the state court of contempt in connection with comments he made on the air.

After the highest state court had affirmed and this Court had denied certiorari, he was threatened with arrest and he went into the federal court seeking vindication of his federal rights.

Now, they said that this was an attempt to secure a review of the state court decision and of course, the District Court went right after that proposition and they said this contention is an error, where a constitutional question is raised by the act of a state officer and he raises a constitutional right, then this Court has original jurisdiction and primary responsibility.

In other words, even assuming that this Court were to dismiss this or affirm the dismissal below, there’s going to be another suit brought, which will be brought now in the federal court and which will have to come right back up here through channels for review on the merits.

Russell Morton Brown:

There isn’t any possibility of disposing of it by this simple, technical mousetrap device of saying, “Go in to the state court.

If the state court decides it against to your part, if they decided in your favor, you don’t need to come back into the federal court.”

I mean, it was an exercise in futility as one of my co-counsel has said.

Arthur J. Goldberg:

(Inaudible)

Russell Morton Brown:

We always have these options in the selection of a forum.

Arthur J. Goldberg:

(Inaudible)

Russell Morton Brown:

I don’t think that that’s quite correct, Mr. Justice Goldberg, for this reason.

I hate to admit it but it’s now 30 years since I started practicing law in the federal courts in this city and around this Court too, and it’s always been my duty.

It’s very seldom I have an option of applying for certiorari.

You do this in extremist.

This Court grants certiorari only when it’s vital and necessary and important and as this Court has many times said, this Court does not sit to correct error.

Arthur J. Goldberg:

But what happened (Inaudible)

Russell Morton Brown:

Well, even on appeal, if Your Honor please, these motions, the docket in dismiss have very summary effect of denying cert.

Arthur J. Goldberg:

(Inaudible)

Russell Morton Brown:

I think the rule should be this, if Your Honor please, that when the Federal District Court has remanded the parties, the parties should come back into the Federal District Court for completion of the procedure there and for decision of the federal constitutional questions, unless, there is some overriding necessity such as there was in the Button case I would say.

It’s a matter of great national importance.

The views of this Court were vital and essential to the functioning of the district courts in all 50 States, let’s say, and I think there was probably a good policy reason on a part of this Court for granting certiorari.

I wouldn’t want to depend on this Court’s granting certiorari in any case where we were unhappy with the District Court’s decision.

I’d like to reserve of my balance to my half if I may.

Earl Warren:

You may.

Russell Morton Brown:

Thank you.

Can I ask you one question before you sit down?

Russell Morton Brown:

Yes, Your Honor.

If you would prevail the State’s — if you got the same relief from the state court (Inaudible) suppose you may have held that the Act is unconstitutional, you got the same relief from the state law — from the state court if you could’ve (Inaudible)

Russell Morton Brown:

Well, if the state court had been willing to hold —

(Inaudible)

Russell Morton Brown:

If the state court had been willing to hold that the statute was unconstitutional under the Federal Constitution, we would’ve presumably gotten the same —

Same relief.

Russell Morton Brown:

— relief, yes, Your Honor.

Earl Warren:

You may have you five minutes to (Voice Overlap) —

Russell Morton Brown:

Thank you very much, Your Honor.

Earl Warren:

Mr. LeCorgne.

Robert E. LeCorgne, Jr.:

Mr. Chief Justice and may it please the Court.

Earl Warren:

Do I pronounce your name correctly?

Robert E. LeCorgne, Jr.:

Yes, sir, you certainly do and I’m glad that you can.

I think my opponent here today has adequately stated the factual situation and the proposition that this is primarily a question of procedure we — we are faced with in this case.

I submit that as these proceedings evolved after the three-judge court had abstained, at that point, if we’re going to speak about these various elections, that — or selections or modes of procedure that the plaintiffs below had their first choice to make at that time.

If they weren’t satisfied with that abstention order under the rules of procedure or under the federal statutory procedural devices, they had a right of direct appeal under 28 U.S.C. 1253 to come directly to this Court and challenge that abstention order.

That was — procedure was followed in a recent decision of this Court, I believe, in Memphis against Turner, or Turner against the City of Memphis, I said it back.

At that point, they did nothing but go back to the state court and submit the same, practically the same petition, asking for the same relief in the state courts that they asked for in the federal court.

The only difference in the procedures were that they left out some of the federal jurisdiction procedural language that was necessary to be put — put into it.

Potter Stewart:

You — you suggest that they could have appealed the District Court’s decision to abstain?

Robert E. LeCorgne, Jr.:

Yes sir.

Potter Stewart:

Under what section?

Robert E. LeCorgne, Jr.:

28 U.S.C. 1253.

I have it right here.

Potter Stewart:

Assumingly.

That’s hardly a final order, is it? Or is it — but was it a — an injunction was asked for in the District Court?

Robert E. LeCorgne, Jr.:

Yes.

Potter Stewart:

And I suppose — that if there is that the failure to issue an injunction, a denial of an injunction?

Robert E. LeCorgne, Jr.:

Yes.

Well, in — in Turner against the City of Memphis, that’s a — it was a case where the Court had abstain and they — and they appealed to this Court.

And it was decided in 1962.

The Supreme Court sent the case back to the District Court informing them that they should not have abstained and to proceed with the case.

Potter Stewart:

But what was said by this Court in that connection?

Robert E. LeCorgne, Jr.:

Sir?

Potter Stewart:

Is that a — you got the citation of that?

Robert E. LeCorgne, Jr.:

3 — 369 U.S. 350.

Potter Stewart:

Thank you.

Byron R. White:

(Inaudible) right there, wasn’t it?

Robert E. LeCorgne, Jr.:

Yes, sir, but — yes, there was an appeal (Voice Overlap) —

Byron R. White:

Under the affirmance?

Robert E. LeCorgne, Jr.:

Yes, sir.

Well, after this took place and the — the case was then tried in the state courts on the same evidence that was presented to the three-judge court, the three-judge Federal District Court and after —

William J. Brennan, Jr.:

(Inaudible)

Robert E. LeCorgne, Jr.:

Sir?

William J. Brennan, Jr.:

(Inaudible)

Robert E. LeCorgne, Jr.:

Their own.

William J. Brennan, Jr.:

On its own.

I see.

Robert E. LeCorgne, Jr.:

The — the case was then tried and submitted in the State District Court on its — on the same evidence that had been presented to the Federal District Court and had been removed from the record for the purpose of re-filing it in the state District Court.

It was affirmed by the state Court of Appeals and writs to the Supreme Court of — into the State of Louisiana, who refused on the ground that the decision of the Court of Appeals was correct.

Was any request made to the state court to limit itself — that it should limit itself to the state law question?

Robert E. LeCorgne, Jr.:

No, sir.

I was — I’m coming to that too, Mr. Justice.

Potter Stewart:

What was the form of the action in the state court, was — was it for a declaratory judgment or —

Robert E. LeCorgne, Jr.:

Exactly the same thing that they asked for in the — in the —

Potter Stewart:

In the original federal action?

Robert E. LeCorgne, Jr.:

— in the original federal action and asked for a declaratory judgment and they asked for an injunction and they asked that the — that their rights be declared under the — what is commonly called Louisiana Medical Practice Act.

They asked for the injunction —

Potter Stewart:

But —

Robert E. LeCorgne, Jr.:

— and that the Act be declared unconstitutional.

Potter Stewart:

For identical relief as had been requested in the original federal court?

Robert E. LeCorgne, Jr.:

Yes, sir.

At that point, after the State Supreme Court had decided the case, the — this Court had certainly previously decided the Harrison case and plaintiffs were or should’ve been well aware of the jurisprudence and the opinion pronounced in that case because it was cited as one of the basis for the abstention by the federal court.

At that time, under 28 U.S.C.A. 1257 Subsection (2), I think that plaintiffs had a right of direct appeal to this Court.

The state court had upheld the validity of a state statute under the Federal Constitution and I think under that procedural statute that that gives them the right of direct appeal to this Court, but there again, the — they did nothing.

So if we review the situation now — at — at that point, there is — they — they have elected or selected or not to appeal from the abstention order.

They have elected to submit all of their issues to the state court for a final adjudication and the —

Arthur J. Goldberg:

(Inaudible)

Robert E. LeCorgne, Jr.:

Well, I think that the — in the light of that decision, they still could’ve reserved some of their — some of their — any of the issues that they wanted.

Arthur J. Goldberg:

(Inaudible)

Robert E. LeCorgne, Jr.:

No, sir.

I think the difference is that what was said in Windsor was that when the doctrine of abstention is invoke, all the state issues must be presented to the state court in the context of the federal constitutional objections to the statute so that the state court may — may reach a more qualified construction.

Arthur J. Goldberg:

(Inaudible)

Robert E. LeCorgne, Jr.:

Well, even if that is true then —

Arthur J. Goldberg:

(Inaudible)

Robert E. LeCorgne, Jr.:

Well, that was —

Arthur J. Goldberg:

I just want (Inaudible)

Robert E. LeCorgne, Jr.:

Well, I think if you follow the — what has happened since in the Harrison and the Button cases, in the — in the Harrison case, this Court directed the — the Federal District Court to abstain on all five of the Virginia statutes under attack when they had in fact only abstained on — as the two of them, but then when the — for some reason, when the plaintiffs went back in the Court, they only raised the two statutes.

They didn’t raise the other three.

So they still exercise an election and then still and all, he could have appealed from the abstention order.

If — if —

Arthur J. Goldberg:

(Inaudible) matter of exception?

Robert E. LeCorgne, Jr.:

Yes.

Well, it just was in effect what was done because the evidence had all been presented, the matter was argued and submitted to the Court and then the Court did not pass on the merits of the — of the case but then simply abstained.

In other words, what — what happens in these cases in light of the decisions in Harrison and Button, which I think now the — the result of the evolution of the doctrine of abstention there or the Court’s — or Button at least as the Court’s final pronouncement is that if you permit such a procedure as to exist that the procedural statutes of the federal courts are in effect going to be limited, overruled or — or — and — and put out of existence in some amount or shape or form because those statutes are very clearly set out, I believe.

The appellate procedures which are available under these circumstances and particularly in light of the decision in the Button case, where — I believe it was Mr. Justice Brennan who said that the reservation of jurisdiction in the District Court was purely formal with the — I submit the understanding that in the event that — that the — that the courts would not — the state courts would not properly act or would not give a just and — decision that — that then that — that the federal court was still there to act and to protect the — the rights of the litigants.

William J. Brennan, Jr.:

Well, this was point — that’s the — that’s the (Inaudible) was preceded though, was it not by this?

Robert E. LeCorgne, Jr.:

Yes, sir.

William J. Brennan, Jr.:

Where, however, the party remitted to the state court in this instance as the appellants here, this party elects to seek a complete and final adjudication of his rights in the state court, may that be said of what this appellant did in the Louisiana courts?

Robert E. LeCorgne, Jr.:

I submit he did so, on the — on the record in this case, I submit that he did.

William J. Brennan, Jr.:

You remember in Button, you see, not only was the submission on the federal court record but indeed there was additional testimony taken before the Richmond Corporation I think it was in that case?

Robert E. LeCorgne, Jr.:

Button was a state constructed record.

William J. Brennan, Jr.:

Now, it was — as I recall it now, I may be wrong about this but I think there was a federal court record which was then expanded in the state court proceeding as I recall it.

I may be wrong about that.

Robert E. LeCorgne, Jr.:

No, sir.

I think what happened was that in Harrison against NAACP —

William J. Brennan, Jr.:

Yes.

Robert E. LeCorgne, Jr.:

— the NAACP attacked five Virginia statutes then the — the Federal District Court —

William J. Brennan, Jr.:

(Voice Overlap) —

Robert E. LeCorgne, Jr.:

— sir?

William J. Brennan, Jr.:

(Inaudible)

Byron R. White:

And there was evidence taken.

William J. Brennan, Jr.:

In the District Court (Inaudible)

Robert E. LeCorgne, Jr.:

In the District Court and the — and the — the Virginia court, the District Court decided three of the statutes were unconstitutional and abstained and sent the other two to the state courts and that was appealed to the — to this Court and this Court then ordered the Federal District Court to abstain as to all five statutes, but for some reason, only two were — were litigated in the Virginia courts and that is the record I believe that came back up here.

William J. Brennan, Jr.:

Well, at page 418, the opinion in Button does say, the complainants thereupon petitioned the Circuit Court to declared Chapters 33 and 36 inapplicable to that activity, the record in the Circuit Court was that made before the three-judge court supplemented by additional evidence.

That was my recollection of what happened.

In other — as I understand it, what happened here was, what went through the state courts was only the record that’s made before the District Court.

Is that right, in this — in your case?

Robert E. LeCorgne, Jr.:

No, sir.

The whole record was resubmitted and the fact was stipulated in the state court.

William J. Brennan, Jr.:

Well, that’s what I’m trying to get at.

Robert E. LeCorgne, Jr.:

Yes.

I’m still —

William J. Brennan, Jr.:

What in addition to the record made before the federal three-judge court, was there in a way of a record before the state court?

Robert E. LeCorgne, Jr.:

Well, when I say it was the same record, Your Honor, what happened was that both plaintiff and defendant withdrew.

All of this was done — all of the record was made in both courts by stipulation, deposition and affidavits.

There was no oral testimony taken on — on — in either of the courts.

So that the subject matter, the evidence was merely withdrawn from the state — from the federal record re-filed in the state record —

William J. Brennan, Jr.:

In other words (Voice Overlap) —

Robert E. LeCorgne, Jr.:

— in the same stipulations under the —

William J. Brennan, Jr.:

— the same evidence —

Robert E. LeCorgne, Jr.:

Yes.

William J. Brennan, Jr.:

— is before the state court.

Robert E. LeCorgne, Jr.:

Yes, sir.

William J. Brennan, Jr.:

While there is, I don’t know that it makes a difference and it’s not necessarily but certainly, in Button, in addition to submitting the federal court record, the party took more testimony in the state court.

Byron R. White:

But the relief asked was the same, was this brought?

Robert E. LeCorgne, Jr.:

Yes, sir.

William J. Brennan, Jr.:

And if the decision’s been the other way, that would have ended the case, I take it.

Robert E. LeCorgne, Jr.:

Yes, sir.

I think they would have been perfectly satisfied with the — with the decision then and that unless the defendants had appealed the case, why, it would have ended right then and there.

I think I would begin to mention that what in effect, I believe, that counsel here is asking this Court to hold in this case is to permit in the case of — of abstention, the Federal District Court to then act as Court of Appeals over the highest court of the various States because that’s in effect what they would do.

What purpose could possibly be gained now to re-litigate this case all over again in the Federal District Court when it’s already been re-litigated and — and these people had every right in the world to appeal to this Court and to have all of their federal issues passed upon by this Court.

I —

William J. Brennan, Jr.:

And all the — and the record, the cold record as it is in the decision below was made on a — on a paper record.

Robert E. LeCorgne, Jr.:

Right, sir.

I just like to conclude, if Your Honors please, that the abstention doctrine is based upon this so-called issue of comity and not to interfere with the state and federal relationship and not to interfere with the State’s normal — normal functions and — and operations.

And that has always been or has been for years of philosophy, I think, of this Court.

And — and in — in this abstention doctrine, this Court has many times said that it would always assume that the various state courts would do their duty and give a fair and impartial hearing on — to — to the various litigants in these matters.

And just recently in one of your decisions, you concluded the opinion by saying up in Martin against (Inaudible) that in the event that the litigant — the plaintiffs there felt that they — the Commonwealth of Pennsylvania, I believe, was involved, would deprive them of every — any of their property without due process.

The Court ended its opinion.

This Court will be here.

And I think that’s the exact proposition that we have here.

This Court was here on two occasions and these litigants have seen fit not to use it before and now wish us to begin again to continue this long process, back through the courts again and again and again, in where — to where we would just face endless litigation on it.

I think the matter can be resolved once and for all by this Court at this time.

Earl Warren:

Mr. Brown.

Russell Morton Brown:

Thank you, Mr. Chief Justice.

This question about endless litigation of which is I’m trying to — these parties came into the federal forum under our federal statute seeking a federal judgment on a constitutional right in 1957.

They haven’t gotten one yet.

They’re still fighting procedure.

Now, if it’s going to take endless litigation to get these rights vindicated, well, I probably won’t be here but counsel are growing up and graduating from the law schools and being admitted to this bar everyday and they’ll be here as this Court is here.

William J. Brennan, Jr.:

Well, Mr. Brown, are there any other — are there any issues which you now have litigated before the three-judge court that were not litigated in the state courts?

Russell Morton Brown:

Are there issues which —

William J. Brennan, Jr.:

Are there any federal issues, I should put it, which you want to take back to the state court which were not — the term submitted to and determined by the state courts?

Russell Morton Brown:

I would say, if Your Honor please, that at this very day, there has been no evaluation whatsoever of the evidence offered, none at all.

There was a tremendous mass of medical and other documentary evidence offered in support of amalgomous summary judgment.

This was never evaluated, either in the three-judge court or in the state court.

Byron R. White:

What —

Russell Morton Brown:

They said we —

Byron R. White:

— what happened in the state court?

Russell Morton Brown:

Oh, they said this is the same argument that was made previously in the — the Fife case, which was 27 years earlier and while they say that there’s progress in the science, we expect that there’s just a more elaborate demonstration.

That’s exactly what they said.

We presume it’s a more elaborate demonstration.

No evaluation of the evidence.

Earl Warren:

There’s no evidence taken in the state courts.

Russell Morton Brown:

All that was (Inaudible) Mr. Chief Justice, was that counsel presented a motion for summary judgment with a lot of documentation, medical reports and files and even moving pictures as I understand it, which had relation to the function of the human body under X-rays, X-ray moving pictures.

These were never examined, never, never evaluated.

It said simply, I expect this was just a more elaborate demonstration of the same arguments that were made 27 years earlier when the case was before the Supreme Court of Louisiana.

Arthur J. Goldberg:

(Inaudible)

Russell Morton Brown:

Oh, I beg Your Honor’s pardon, please permit me —

Arthur J. Goldberg:

(Inaudible)

Russell Morton Brown:

Well —

Arthur J. Goldberg:

(Inaudible)

Russell Morton Brown:

If Your Honor please —

Arthur J. Goldberg:

(Inaudible) federal court —

Russell Morton Brown:

No.

Arthur J. Goldberg:

— but I don’t think that you clearly stated that your evidence has never been included.

Russell Morton Brown:

I think if Your Honor will look at — if Your Honor will look at the state court decision, which I believe is in the record, you’ll find that they said, “We apprehend that this is not a new approach, but simply a more elaborate demonstration.”

They didn’t examine the evidence, Your Honor.

Arthur J. Goldberg:

But you don’t think that they did (Inaudible)

Russell Morton Brown:

I’m saying that they didn’t look at it.

That’s what our position is.

Hugo L. Black:

Where is in the record show that?

Russell Morton Brown:

I — well, I’ll have to say this, Mr. Justice Black.

I was under the impression that Louisiana counsel on coming back into the District Court has made a matter of record, the state court decision and opinion, which apparently has not been done.

However, that opinion is referred to, I think, in the brief and it’s reported in the Southern Reporter where the Louisiana —

Hugo L. Black:

Does it say that they did not consider the evidence?

Russell Morton Brown:

It says that — it’s claimed by the plaintiffs here that there has been a great new development in the field of chiropractic and it has made great progress and so on.

However — excuse me for the — it says, “However, we apprehend that this doesn’t show,” this evidence doesn’t show a new science or a new progress but it’s simply more elaborate development than was previously before us.

Arthur J. Goldberg:

That seems to me to indicate they didn’t look at the evidence.

Russell Morton Brown:

They — they simply presume.

They didn’t say, “We have examined the evidence” and we do not find that it shows such and such.

They didn’t make any specific finding.

They said we presume, Mr. Justice.

What’s the citation to that?

Russell Morton Brown:

The citation, Your Honor, is 126 So.2d Page 51.

William J. Brennan, Jr.:

You — you mean that — that’s not in this transcript here?

Russell Morton Brown:

Apparently, it was not made a matter of record in the United States District Court when they came back after abstention.

If I may say one thing, there is one very important point.

In connection with the Button case, I think Mr. Justice Goldberg may be particularly interested in this point.

There were two parties there.

There was Harrison and there was the defense Button.

One of them came up here on certiorari. Button came up here on certiorari.

The other (Inaudible) — Button, of course, went back into the District Court and Mr. Justice Brennan said that he recognized that and then he went on to say that a party always has a right to go back to the District Court.

Now —

William J. Brennan, Jr.:

That’s what I said?

Russell Morton Brown:

Sir?

William J. Brennan, Jr.:

That’s what I said?

Russell Morton Brown:

Yes, Your Honor, you did.

Now, on that basis, obviously, we made an intelligent judgment as well as we couldn’t in lack of guidance from this Court of an authoritative nature at that time.

William J. Brennan, Jr.:

Well, you didn’t have Button when you made that decision.

Russell Morton Brown:

No, no, but on a basis of the information available to us at the time, it seemed proper to go into the District Court.

I still think that as a matter of policy, this Court would prefer that this Court shouldn’t be burdened with unnecessary petitions for certiorari in appeals if the District Court can dispose them, especially, if Your Honors please, since the district courts will undoubtedly resolve and narrow the issues that must be brought here.

Why this Court have its docket up with cases that have just been decided by the state courts probably in a diffused decision, which doesn’t specialized by federal exposition but upon the state law and the facts maybe unsettled.

Whereas, if you go on to the Federal District Court, proper practice of law would enable you to present for the court’s decision, requested findings of fact and conclusions of law on which we could take with appeal.

Now, in this case at bar, counsel has said even if the doctrine of abstention means nothing or it means that the state court decision is binding, binding, on the federal courts, well, this would mean an abnegation of judicial authority as Mr. Justice Frankfurter referred to it in the Thibodaux case.

However, we don’t expect anything like that to happen.

This is just a matter of clarifying the state law on which the state court is the final and conclusive authority.

In the Leiter case, which is cited in a case cited by the other side, Leiter Minerals against United States, the Court said, “The state court must decide these questions so that — but they can only decide questions within their competence.”

Russell Morton Brown:

It’s a case of rendering (Inaudible).

If you have a federal question, that must be decided in the federal courts, and if it’s a state law question, in the state courts.

Now, we’ve been asked, what’s our prejudice?

We have never been afforded a decision by a federal forum on a question of federal constitutional right which arises under the Constitution of the United States and the Civil Rights Act, which is the basis on which this action is brought.

We feel we’re entitled to that decision by a federal court.

We feel too that to say that the decision of the state court is binding, it’s simply a — an utter abnegation of judicial authority by the lower federal courts.

Thank you, Your Honor.

Earl Warren:

(Inaudible) Adjourn.