Goldstein v. Cox

LOCATION:Holmes County Board of Education

DECIDED BY: Burger Court (1969-1970)

CITATION: 396 US 471 (1970)
ARGUED: Nov 17, 1969
DECIDED: Jan 26, 1970

Facts of the case


Audio Transcription for Oral Argument – November 17, 1969 in Goldstein v. Cox

Warren E. Burger:

Number 66, Goldstein against Cox.

John R. Vintilla:

Mr. Chief Justice —

Warren E. Burger:

Mr. Vintilla.

John R. Vintilla:

May it please the Court.

We have here before the Court today a problem, which this Court had occasion approximately two years ago to review the pass judgment on it.

We have in review here, the so-called Iron Curtain Statute for the State of New York known as the New York Surrogate’s Procedure Act to formerly Section 269-a and now for the reason amendment of June of ’68 known as Section 2218.

Now, this statute in substance provides that an heir legatee or beneficiary of funds from the state or other source in New York who happens to reside in one of so-called Iron Curtain countries that the State of New York will protect this particular citizen national of that country by withholding the transmittal of his distributive share to funds that he is entitled to.

If he would not have the benefit or use for control of the money or other property to him or if there are other special circumstances that make a desirable of such payment it should be withheld.

Now, this law of New York is substantially identical to one of the three provisions of the Oregon statute, which this Court struck down as an impermissible interference with federal power over foreign affairs.

Potter Stewart:

Is there any escheat provision in the New York law?

John R. Vintilla:

Your Honor, the New York law is a custodial in nature that provides — does not provide for escheat.

Potter Stewart:

Under any circumstances.

John R. Vintilla:

Under any circumstances.

The money is placed in all appellates, its placed in the deposit in one of the banks in New York until such time as the particular heir or beneficiary is representing and could come in and satisfy the court that he will have the use benefit or that circumstances of change and then the Court could reconsider the matter.

As a practical matter funds belonging to Romania nationals of been brought in excess of 25 years as the matter now stands.

There was one challenge to the statute by Romania heirs the Greenburg case, which we mentioned in our brief and in that case the heir sought to establish to the satisfaction onto a surrogate of New York county that they do have to use benefit and control in that circumstances are such in Romania that that to be permitted to have their money.

And, the surrogate there found that the evidence was in such an issue to convince him that they would have to use benefit in control or the circumstance of change.

Now, this matter was appealed to the Court of Appeals of New York and they denied leave to appeal allow the surrogate’s decision and the Appellate Court which affirm and allow that decision to stand.

Now, in our case, citizens who are entitled to have been or are entitled to funds which are bring withheld from them challenged the New York Statute by filing an action in the United States District Court for the southern district of New York.

Challenged the constitutionality of that statute then sought to have its application enjoined and so far as the rights of Romania national are concerned.

At the same time, they asked for the convening of a three-judge court to hear the Congressional challenges to the New York Statute.

The district judge initially denied the convening of a three-judge court on the ground that he thought the constitutional challenges were frivolous and appealed to the United States Court of Appeals.

The Court right from the bench affirmed the district judge in holding that the constitutional challenge is not serious enough to convene a court in upon certiorari granted by this Court.

Now, this Court some merely reversed and remanded the case back to the United States Court of Appeals for further conservation in the light of Zschernig v. Miller which this Court had decided while the petition for certiorari was pending initially.

Now, at that stage, we had thought upon reading discerning decision that because of the swiping rational of the majority in the concurring opinion that — and the New York statute being so similar to the Oregon’s statute that, that question would put to rest.

That similar statutes which such as New York were unconstitutional because they were enacted in such a fashion that they compel the courts to intrude into an area.

That is the exclusive domain of the federal government.

Upon hearing by the three-judge court, — the three-judge court found otherwise, the matter was heard in — before the three-judge court in June of 25th, 1968 and sure that before that the New York Court of Appeals had occasion for the first time since Zschernig to review the New York law in the light of the Zschernig decision.

And that was the case which is mentioned in both brief the matter of liken, and in that case, New York Court of Appeals felt that under record of that case, there was no showing that the New York courts have engaged in any of the activities that were proscribe by Zschernig.

And, felt that the statute of New York is not unconstitutional.

John R. Vintilla:

Well, the same conclusion was reached by the three-judge court.

The three-judge court felt that upon the record before it that the — there is no showing that the New York Courts have engaged in the activities proscribe by Zschernig.

Now, the matter of court — the three-judge court in our case had the matter before on a motion for some re-judgment.

The matter was filed before the decision of Zschernig and after the decision of this Court in Zschernig, the appellants filed a motion for some re-judgment on the strength of the conclusions that put to be drawn from a Zschernig.

And in support of that motion for some re-judgment, the appellants attached an affidavit and which there were set fort many cases and instances which appellant sought to establish that the New York courts in interpreting and in construing the New York statute were in the fact engaging in activities proscribed by Zschernig.

Now, in the case of the Romanian interest, Greenburg has established a precedent that as a result of that — as a result of the finding in Greenburg that all other courts and followed Greenburg as holding that the mere fact that you are resident for City of Romani, thereby you were not entitled to have your money because of that decision of the policy of the state of New York in withholding these funds from these appellants.

Now, it is interesting that in Greenburg, the three-judge court had determined that there was no showing that any courts had engaged in any proscribe of activities yet, the Greenburg decision which was before the court very clearly shows that the court engaged in such post crime activities in seeking to convince the court that money should be released.

The parties, the Romanian and plaintiffs in that case had summoned the chief for the counselors section of a domain in the legation at that time and to testify with reference to the inheritance laws of Romania and to the relevant laws would reference to the problem at hand.

And, after establishing his expertise in the matter, and testifying that there are no restrictions, the court refused to give any credence to the testimony of this expert who according to my understand ever who was not impeached in anyway.

And, moreover, the Court in reaching his conclusion had to consider the foreign exchange control of the laws of Romania and, in doing so, the court found that he did not like the rate of exchange that these citizens of Romania were receiving and therefore held that in effective of confiscatory and by reason of that, that they would not have to use benefit in control of the funds.

This same position on the foreign exchange allows was also taken by the Appellate Court which affirmed to decision of the surrogate and the surrogate somehow and I’m not familiar where the surrogate came to the conclusion that Romanian lei which is the Romanian currency could be purchased here in the United States and New York had a very high rate of exchange certainly much higher than the official exchange and use that as a basis to conclude that the — since the exchange are such of discrepancy and what you can buy currency in New York and what official exchanges that therefore these people were not getting all they what they are entitled to.

Now, I don’t know where that Greenburg Court had got in the exchange of 31 and ¾ of my understanding Romanian law does not permit any of their currency to come in from abroad or, they do not sell it as far as I could ascertain official anywhere in the world that 31 and ¾ allay to a dollar presumably there is a black market in that exchange.

But I don’t see how a black market rate of exchange could furnish the basis of illegal decision.

But, in any event, we have other showings in the affidavit that support of the motion for some re-judgment showing that the various attitudes of the state controller who has some of these funds under his custody.

And, the courts that they have engaged in attitude that certainly clearly proscribe by a Zschernig.

Now, interestingly enough, the only authority is in the United States that I have knowledge of a do not or still at here to this iron curtain statute in type of law is the state in New York and the Attorney General of Montana.

But, in my experience, in the last 10 years in many of other jurisdictions of Florida and Maryland and Connecticut and New Jersey and Ohio and Michigan all have statutes which I think were copied from the New York statute which are substantially identical.

And, these are — all of these of jurisdictions and the courts in these jurisdictions have not applied their iron curtain statute to the rights of the Romanian interest once they were aware and were pointed with the financial agreement of 1960 between Arab country and Romania whereby our country had released all blocking controls and restriction regarding the transmittal of public funds to Romanian.

And, ever since then, they have been sending such things as social security benefits and various pensions and other public funds.

And, more interesting since Zschernig, the State of Oregon has held its statute to be unconstitutional.

California is — and the reason appellate decision on October 9th of this year in California State of Kramer also follows there and he held that by reason of the holding in Zschernig that their statute is unconstitutional.

And, in Montana, we have the situation in ad valorem case, there was up before this Court and decided in January of this year were the appropriate court found that in view of Zschernig and the concurring opinion of the court in Vorem versus Fall that there is no question that the statute cannot be applied constitutionally.

And, therefore, did not follow it however, the Attorney General disagreed and he presently have filed an appeal to the probate court’s decision appeal to the Supreme Court of Montana.

Now, we have a recent decision from three-judge court for the northern district of Ohio, eastern division which to my knowledge is not reported where an identical action was filed challenging the iron curtain statute of Ohio by a certain Czechoslovakian heirs.

And, the statute in Ohio is substantially identical as the New York statute, it’s a custodial statute and it provides that the heir has the burden to prove that he has the use for control of — would have the use and control of the funds or that special circumstances in the country of his residence would not prevent him from using and enjoying his property without confiscation or hold or impart.

And, I think that my position would reference to the New York statute is very well said out by the three-judge district court in this Ohio case of Maro versus Batten.

They may are all —

Is that in your brief?

John R. Vintilla:

No, I don’t believe we have it in our brief.

Warren E. Burger:

So, will you make that available to us if you want to have any reliance on it?

John R. Vintilla:

Well, I have — the matter was unreported.

I thought it would be reported and therefore and have guessed we over looked it and we have not cited in our brief.

It was decide in July of this year by a three-judge court, we certainly will furnish the court if the Court’s question —

Potter Stewart:

Is it still unreported?

John R. Vintilla:

Yes, as far as I know yes Your Honor, it’s unreported and it’s Maro versus Batten.

And, in that — they have the same problem, the same action challenging the constitutional.

I’m asking for convening of the three-judge court and that court in striking down and following Zschernig states that it follows.

The so-called iron curtain statute such 211381 and that is the Ohio statute were recently considered by the United Stated Supreme Court in Zschernig versus Miller and then it goes on to elaborate on the type of statue of Oregon have the three provisions.

And then in its appeal in the court when I to say further “in passing upon the validity of the statute,” the Supreme Court consider the whole area of reciprocal inheritance statutes.

The Court drew a distinction between reciprocal inheritance statutes which permits the state court only to re-construe on the apply laws of foreign nation.

And, those which permit the court — state court to launch enquiries and to the type of governments that obtain in a particular foreign nation.

Citing its earlier decision in Clark versus Allen, the Court noted that state courts are not precluded from really construing and applying laws of a foreign nation.

The court held however that where statute permits inquiry and to the type of government existing in a foreign nation.

Or into the operation of that government or into the question of whether the legal rights guaranteed by the nation or rights in fact or into the question of whether statements by the representatives of foreign nations are credible or made in good faith.

Or into the likelihood that the legatees will actually receive the property left to them such statutes so applied intrudes into the exclusive right of Congress to regulate foreign policy.

Section 211381, Ohio revised code which is a statute that issue in the present case is someone different from the Oregon statute involved in Zschernig.

In Ohio, the statute requires the probate court to determine whether or not the foreign legatee will have to been further use or control of the money left him because of circumstances prevailing at that the place of residence of such legatee.

The Ohio statute does appear to be directed had an inquiry into the operation of the foreign government and into the political economic and social conditions prevailing in the foreign country.

This type of inquiry is specifically prohibited by the doctrine of Zschernig versus Miller and we say that that exact language had exact argument as applicable to the New York statute here under review because this statute also provides that if there is a special circumstance — special circumstances that the points of residence which would make it appear that the party would have not have the money then the court could withhold the funds.

Now, —

Potter Stewart:

Do I understand Mr. Vintilla that you’re going to supply us with the copies of that —

John R. Vintilla:

Maro versus Batten issue

Potter Stewart:

Maro, But where is that the Northern district of Ohio?

John R. Vintilla:

Northern district, the eastern division.

Potter Stewart:

Last summer?

John R. Vintilla:

Yes, for three-judge court.

What’s the name of the —

John R. Vintilla:

Maro versus Batten.

Potter Stewart:


John R. Vintilla:

Yes Your Honor.

John R. Vintilla:

It was decided in July of 69, but since so far as I know and as I have been asked, naval ascertain, it’s unreported.

Now, in so far as this statute is concerned, I think this Court in the majority and Mr. Justice Stewart’s concurring opinion made it clear that the fatality of the infection that’s involved is that the statute is freeing in such a manner that they compels the Court to go into internal matters, to go into the nature of the government, the policy of the government, the laws of the government and the laws of the government were relations to their citizens.

And because these statutes are framed in such a way, the conclusion is inescapable that these courts are intruding into an area that’s the exclusive domain or the federal government.

Potter Stewart:

Mr. Vintilla, in all modesty you can’t really rely on a concurring opinion, is that what’s the court opinion said presumably there would not been a necessity for a concurring opinion to say something?

Well, that is true but we believe that the majority opinion not so succinctly, not so directly this is said about the same thing that these courts are injected into this area whether because to make these inquiries and to make inquiries based consideration which are political in nature and which are involves, which are on an area that’s involved the conduct of foreign relations.

And because of that, this statute is unconstitutional.

Warren E. Burger:

Well, haven’t the courts been dealing with the operation of foreign laws taking evidence, making findings on the operation of foreign laws in other areas for many years?

John R. Vintilla:

Oh yes and they still — I would and I think Zschernig makes it clear that they still have a right to applying construe and this Maro case say so.

But, in our situation they are not applying and construing, they are going much further.

The way the statute is framed, it’s even difficult to determine what evidence you would need to convince a court that they have to use benefit from all the cases and the cases are repelled what example or you bring an expert.

You bring an expert to testify, we have that case and we have a case in New York in the matter of Dragonov involving Bulgarian areas.

And they brought a specialist — an attorney from Bulgaria specializes in civil family law and in inheritance law and a member of a firm in Sophia and this is what the court said were reference to his testimony.

The court cannot disregard the fact of Mr. Stephanof.

He is not a free and independent attorney and an impression he sought to create as a member of a lawyer’s collective subject to the restrictive pressures commonly applied in iron curtain countries.

As he was about to return to Bulgaria, he cannot be expected to say anything interrogation of his government or its physical policies.

Mr. Vintilla, has the state department shown any interest in this case?

John R. Vintilla:

Well, the state department is sometimes on both sides —

Well, they file brief as amicus in a jury case which —

John R. Vintilla:

Not in this case Your Honor.

Not in your case?

John R. Vintilla:

No, not in the present case.

There is — where there is a letter that the state department sent to Governor Rockefeller after the financial agree when 1960 requested that he advice the New York authorities that the federal policy now permits the transfer of funds to Romania and that evidence he was ignored by the state authority to probate surrogate judges.

And at the same time which we have letters in the state department saying that, this is a purely a matter of a state law the administration (Voice Overlaps)

The reason I asked a question, my recollection is that maybe wrong but I think I’m correct.

In attorney case they filed amicus briefs and the laws kind of administration these laws now passed in the final collection.

John R. Vintilla:

That is true Your Honor.

I was wondering whether or not the point of view were changed or what do you —

John R. Vintilla:

Well, we — I know that they have not filed any brief here as amicus through in any capacity whatsoever.

They have not taken any official position insofar as I am aware in this — come before the court.

We feel that the state department is not injecting itself for directly.

John R. Vintilla:

Perhaps, I think there has been some letters that other attorneys and I think it’s in amicus brief that they shall await the outcome of this particular problem before the court the today.

But, I think that the reading of Zschernig, I think that the reasonable conclusion be drawn from that that New York connected to such statute because it dislikes the particular governmental systems and the policies of these countries.

And that was the New York’s way of reacting in a hostile fashion saying, where do you — you appropriate properties of our nationals and you have a system where you deny your citizens the right to private property and because of that, they have enacted the statute to react to say, well, if you do all those things, we’re going to withhold funds belonging to your citizens.

And this type of conduct is the one that causes the statute to invalid because this is not a function of the state.

A very state in our union would react in such a of fashion and go different ways on a purely international problem we have chaos.

That’s if he know question as to the power of Congress who step in, is that defends the law of many statement has there been enacting the surrogate statute to this?

John R. Vintilla:

Well, I think Congress certain to federal government this is an area that they can legislate on certainly government could’ve Congress can act in this area and any action taken by the federal government was certainly be overwriting and the certain any state law that contravenes it would have to fall.

I think that in our situation here with this financial agreement I think as Mr. Justice Douglas said in the Gorum case and which was joined by Mr. Justice Harlan and Mr. Justice Black, Mr. Justice Fortas he said that federal policy permits the free flow of funds to Romania which is true and that no state judge, they make or apply rule.

That is contrary to that policy which is true, I think — I don’t think the problem is a difficult to see and our estimation of it perhaps we’re so obsessed and studies for many years.

But, if your federal government does one thing and the state comes and says, well because the federal government for awhile was permitting funds.

And there are still countries where he did step in an action this area but when he steps in the area made a determination that these people will have the use of benefit.

There is a reasonable insurance conditions are such for a state to come in and make a contrary determination to that made by the federal government which is entrusted with these matters which is in a better position to make such a determination and New York has said this.

And interestingly enough in the area where they refuse to transmit money, they were allowed federal policy.

They have said in the leading case prior case that the federal government in the better position to know what the situation is in Romania.

And therefore since the federal government does not permit the sending of fund, we can rely and follow that policy and withhold the transcript of fund.

Yet, when the federal government has taken the position of free flow, the New York is still maintain the other position and that is the followed federal policy that would satisfy them and when they like federal policy, when they didn’t like federal policy they refuse to go on.

And I think that is the problem here, there’s no question about it and the states who seen it except New York.

All of the authorities have seen it and there are many states which would not in that such a law.

Illinois refused Governor Kerner refused to approve such a law difficult all because he says “We’re getting in to an area that will exceed the constitutional authority of the state and we should enact in such an area and let the federal government act in such an area.”

And therefore, I say, that the decision below is clearly contrary to the constitutional conclusion of this Court in Zschernig and should be reversed and these people are dire need of their money.

Many of them have passed away and many amounts are very modest should have their money at the earliest possible moment.

Warren E. Burger:

Did the state of New York pass the statute that no, none residence and alien could inherit New York?

John R. Vintilla:

Well, I think that that may and they treat everyone equally without discriminating with aliens.

It’s traditionally, the authority of a state in that area to perhaps eliminate but I think they have to do on a constitutional fashion.

And they — it was in the confines of their traditional probate authority without exceeding is they have here and what I’m trying to make foreign policy as New York is in our opinion and thank you very much.

Warren E. Burger:

Mr. Cohen.

Daniel M. Cohen:

Mr. Chief Justice and may it please the Court.

This appeal is before the Court after the denial of the motion for summary judgment by the appellants.

Matter is before the three-judge court solely upon the basis of affidavits.

The Attorney General was prepared in connection with this case to go ahead with a trial of issue that have been presented by the pleadings here in order to have determine the issue which is presented by these plaintiffs of whether the New York statute which has under prior decisions been held to be valid on its face.

Daniel M. Cohen:

Determine have a three-judge court determine whether the statute was being applied in an unconstitutional manner.

Now, this Court had before a similar appeal from the denial of motion for summary judgment in Gloren against Follo, and the Court as I see it pretty much unanimously decided in that case that the summary judgment motion on appeal from the Montana District Court have been properly denied.

There was a dissent in Gloren which was predicated upon the fact that in Gloren, the District Court had completely dismissed the complaint which have been filed in that case in Montana.

And the dissent was based upon the theory that this Court whatever its prior decisions for the relation to abstention should have directed the Montana District Court to retain jurisdiction of the case to see what the state court would do where a relation to the decisions of this Court in the Zschernig case.

Now, in the instant case the Attorney General has never moot to dismiss the complaint in this action.

Despite the provisions of Section 2283, despite the fact that there are proceedings pending that were referred to in the complaint.

Before the surrogate’s court, before the various surrogates that are named as defendants in this case, despite that there are actual pending state court proceedings which the complaint seeks to enjoin and despite the fact that as I pointed out to this Court in the IANU case which was before this Court several years ago that the doors of the surrogate’s court are constantly open to the making of any application to withdraw these funds so that instead of coming into the federal courts through the District Court through the three-judge court not to the Supreme Court.

These Romanian heirs are still in the position where they can go to the surrogate’s court in New York and to apply from the withdrawal of the funds that have been withheld.

Now, in the IANU case where the matter came before this Court after the decision in Zschernig, a dissent was written by Justice Douglas saying, we should — this Court should not compel the applicant to go all the way down that the surrogate’s court and come back up here again.

In IANU, an application was made to the surrogate for the withdrawal of funds and the application which was made in that case by an assignee of a none resident alien was approved despite the fact that there was a conflict between the assignee and other claimant who have a power of attorney from the none resident alien beneficiary.

The surrogate determined the dispute between the two conflicting claims and directed payment to IANU in the America state, IANU getting of the amount which was on deposit with the New York Surrogate.

Now to a certain extent, the appellants here are pretty much beating a dead horse, because the talking about a situation to a certain extent which existed at the time of the complaint was filed in those actions.

They disregarded all of the things that have occurred in the Surrogate’s Courts in New York.

Since that time, the fact of the matter is that with relation to claims by Romanian none resident aliens, all of the judges within the limits of the city of New York who were designated as defendants in this suit.

Surrogates within that area have been transmitting funds to none resident aliens.

The amounts that have been involved in these states are varied in $5000.00 to $35,000.00, this is my up-to-date information and these funds have been directed to be transmitted by the surrogates and Mr. Vintilla if he goes into the surrogate’s court at this particular point, I think we’ll have no real difficulty if he is able to supply sufficient prove to the surrogates with relation of the validity of his claims.

The Attorney General as I stated was prepared in connection with this matter before the three-judge court to indicate that even at the time of the hearing before the three-judge court, a year ago.

In a substantial portion of the cases that were coming before the New York Surrogates direction were being made to transmit funds are condition in some cases with relations of some of the countries that the amounts be limited with relation to say Poland to $5000.00 and two check certificates with relation to Russia that the amounts that were transmissible should not exceed the sum of $10,000.00 to any beneficiary.

The Court of Appeals for the State of New York in the Lycan case which was decided just a few days before the argument, before the three-judge court, held that the New York Statute was a statute which was capable of being enforced without animate versions with relation to the fund, to the governments of foreign countries.

The District Court here has indicated clearly that they find that this record is inadequate to justify this Court in holding summarily that Section 2218 is unconstitutional upon the Zschernig rule.

Without any evidence and this was the situation before the District Court, Mr. Vintilla was given the opportunity to present evidence, he did not.

Without any evidence whatever is to how Section 2218 has been applied in this case, we are unable to say that it has been applied in such a way as to interfere with the foreign relations of the United States.

We interrupt the Supreme Court’s recent ruling denying a rehearing in IANU as at least that indication that evidence of improper application of that statute is necessary.

Now, —

How much money is involved?

Daniel M. Cohen:

In this — this is an attempt to set up a representative lawsuit on behalf of various Romanian beneficiaries and they are all fairly small estates.

As I understand that are represented by these particular plaintiffs and the actual disposition that would be made with relation to a claimant, they went back into the Surrogate’s Court would undoubtedly at this particular state is be favorable.

The —

Hugo L. Black:

How do the complaint start, what was the complaint?

Daniel M. Cohen:

The complaint alleged and —

Hugo L. Black:

And what court was affirmed?

Daniel M. Cohen:

The complaint was a complaint filed in the southern district of New York stating that the plaintiffs were nationals of Romania and specify that certain particular surrogates — there are 62 counties in the New York state.

And these are surrogates just in poor of the counties in the state of New York stated that this surrogates were withholding moneys of these beneficiaries — these Romanian nationals who were resident in the Romania.

Hugo L. Black:

Is it named who they were?

Daniel M. Cohen:

It named certain specified —

Hugo L. Black:

Is it a genuine lawsuit?

Daniel M. Cohen:

The — yes, there are lawsuits pending to the extent that there are claims that have been filed with surrogates in Bronx county in New York county, Queen’s county and King’s county where funds have been withheld where they can still go back into these various surrogates — before these various surrogates.

Actually, two of the surrogates that are named here are no longer serving in the particular offices which they held at the time by reason of the exploration of their terms.

The successors are paying out moneys and not only to the applicants from these countries, but I understand that one of them abused the Zschernig decision as the sufficient warrant to pay the pay moneys to certain of the countries which has to which fund is oblige.

Hugo L. Black:

What relief?

Daniel M. Cohen:

Red China.

Hugo L. Black:

Was asked for it?

Daniel M. Cohen:

The relief that was asked before here was a declaratory judgment and injunction against the surrogates in forcing the statute of the state of New York which was then Section 269-(a) of the Surrogates Court Act and now as Section 2218 of the Surrogates Court Procedure Act.

Hugo L. Black:

Did I understand you to say previously that some of the surrogates there were ordered and the money should be paid?

Daniel M. Cohen:

Some of the surrogates are ordering the money to be paid and some of the surrogates were ordering the money to be paid that the —

Hugo L. Black:

What about these particular surrogates here?

Daniel M. Cohen:

Well, the — as to the particular surrogates who were included in the — as defendants here, the names Cox as a surrogate was no longer sitting, Duffey who was sitting, he is paid.

Silver is no longer sitting —

Hugo L. Black:

What did you say about that second one?

Daniel M. Cohen:

The second one, Judge Duffey though is making payments and directing transmissions.

Hugo L. Black:

Such as requested by the plaintiff?

Daniel M. Cohen:

Such as requested by this plaintiff.

Hugo L. Black:

Now, what about the third?

Daniel M. Cohen:

Silver is no longer sitting, but he has successor Judge Soper —

Hugo L. Black:

Silver is no longer sitting has he been changed?

Daniel M. Cohen:

His term of office expired and he was succeeded by another surrogate.

And then the successor surrogate has been paying, the money is not only to people who were like those represented here, but also paying them to the residence of countries of which are — has to which funds oblige.

Hugo L. Black:

What about the fourth one?

Daniel M. Cohen:

Surrogate McGrath is awaiting the decision of this Court with relation to the constitutionality, but in the meantime, he is paying the amounts out in to Romanian representatives in small amounts.

Warren E. Burger:

Mr. Cohen, you may proceed.

Daniel M. Cohen:

The Attorney General is not familiar with the decision which was called your attention by Mr. Vintilla and his argument.

But, I have called his attention, a law review article which is about to be published in my Baylor University, School of Law.

Hugo L. Black:

So it’s about to be published?

Daniel M. Cohen:

Yes, I — shortly after I completed my brief and had at file for this Court, I received a copy of the letter from an Assistant Professor Marian A. Farwell at Stetson University College of Law indicating that he had or become familiar with this case and have a strong interest in the final outcome thereof.

And had prepared an LLM thesis for his studies at George Washington University Law School.

Now, he sent me a copy in Xerox form which I have duplicated and which I have left with a clerk so that it will available for the court counsel for the appellants has received a copy of it.

And I would like to just read a few sentences from the letter of transmission from Professor Farwell.

I corresponded with counsel in most of the major cases decided prior to your case, the subject of the thesis is state probate laws alien heirs the Zschernig legacy.

I corresponded with counsel and most of the major cases decided prior to your case including Mr. Vintilla with other law professors concerned with the problem and was able to get some information from the various agencies involved when there was in Washington.

These research in my opinion has turned up some interesting question about Zschernig against Miller its firm applications and which to the best my knowledge have not been considered by the court of any of the accommodations who have commented on the problem.

It’s my hope the court will not extend Zschernig to the point where there will be required to hold the New York’s Statute and similar ones to be unconstitutional per se.

I have the taken the liberty of volunteering this thesis in a hope that you may find that to some use in the Goldstein case.

My interest in the case is string and I am hopeful that the court will affirm the lower court’s decision.

So have an — I wish you success etcetera.

The reasons as I particularly want to have this thesis by a law professor before you is that in fact most of the testimony that has been adduced in various proceedings in the New York Surrogates Court and recent years has not been ambassadors or representatives of foreign government.

But, the testimony has been there of a Professor Meyer of Harvard Law School who has been testifying on the basis of the fee of $500 per day for testimony to show that in these various iron curtain countries.

The persons who were named as beneficiaries will actually receive the used benefit in control of the legacies which are involved.

Now, the purpose of the New York statute is not what the plaintiffs have stated that to be.

The statute used benefit control to something design to see to what the persons who were named and will persons who have a natural objects of bounty who would get distributives shares under the New York distributions statute will actually receive their legacies or the distributive shares.

The statute on its face contains no language, which might be considered any sort of animate version.

I think that the thesis which is submitted by Professor Farwell will indicate probably a response to the Chief Judge’s question.

Many statutes which deal which deal with problems of foreign law or raggedly treated by our courts, that they’re treated in a way which does not require any eminent version, doesn’t require any interference with foreign relations.

That it is not necessary for the disposition of this sort of case to bring in a foreign consul and to place him in a disparaging position.

We were prepared to show that even before the decision in the Zschernig case, that various surrogates throughout the state had upon appropriate testimony directed distribution of shares where the records in the cases before them warranted such disposition.

In my 1967 brief before this Court in opposition to the petition for cert which was filed by the plaintiffs here.

I cited the Sidla case.

In that case, money had been withheld amend despite my argument in the third department for the situation does not the third department of New York Court System that the testimony was still substantially of the same was have been originally at use before the surrogate.

The appellate division and the third department directed transmission.

The moneys involved there where Hungarian moneys, but the situation has no different from that involved in this Romanian case.

Now, we believe that New York just like in other litigant before this Court is entitled to due process.

Daniel M. Cohen:

Reversal of this decision would place New York where in a situation where it had not actually been granted the hearing as to how its statute was being administered.

With relation to remarks that are made by or have been made by certain of the surrogates or to have — are alleged to have been made by the surrogates that might have been disparaging.

I might say this, this Court has sustained to also of other attempts at the freedom of expression, freedom of speech, freedom of press.

It seems to me that surrogates of our courts if they go beyond their duties in no worst position then individuals who seek to state their own opinions with relation to matters that may affect public policy.

However, the statute which you have is a statute which deals with the transmission of private funds.

It does not in anyway contradict the state department arrangements with Romania which deal simply with the transmission of public funds.

In answer of the question that was addressed to appellant’s counsel as to whether there has been any state department expression.

I have a next essay and appendix to my brief, a letter which was written to counsel for the amicus curiae in this case which states that since the administration of a state is not a federal function.

The remittance of inheritances to far and beneficiaries including those in the Soviet Union, that was the country as to which the question was addressed does not normally come to the attention of this department.

The department of state is therefore not make position to know or to make judgment on the basis for the small member of cases that which the department has become aware in which Soviet as I believe to receive benefit from the remittances of the state shares where the funds sent to persons resident.

In the Soviet Union from the United States are generally received by them and fully available and then for use in benefit.

This letter was dated June 1968.

Now, the Attorney General respectfully submits upon the record in this case dealing solely with the question of whether summary judgment should’ve been granted or denied that summary judgment was properly denied.

And that this Court need not at this time pass upon the question is to what would happen if the federal government through its Congress determine to pass a law which prohibited this type of state’s statute.

Thank you, Your Honor.

Potter Stewart:

As you submit the case the question before us is fairly narrow as I –whether or not the court — the three-judge District Court was in error in failing and refusing the grant of summary judgment —

Daniel M. Cohen:

Yes Your Honor.

Potter Stewart:

At the behest to the plaintiff, that’s it?

Daniel M. Cohen:

That’s it.

Potter Stewart:

That’s a narrow issue.

Daniel M. Cohen:

You know in narrow issue and I don’t think it’s necessary to pass upon any other question at this stage of this litigation.

Byron R. White:

But the — such as whether the statute showed on that the invalidate on its face?

Daniel M. Cohen:

Well, it seems to me that the prior decisions in this case including the remission of this case to the District to the Court of Appeals.

Byron R. White:

Well, if the — but if the — if this statute were invalid on its face, there wouldn’t be any need for a trial?

Daniel M. Cohen:

Yes Your Honor, you’re right about that.

I would again need that file.

Byron R. White:

And you simply assert to that in Zschernig it’s an application question rather than a —

Daniel M. Cohen:

Yes Your Honor.

Byron R. White:

As a matter.

Daniel M. Cohen:

As the opinion was written in Zschernig by Mr. Justice Douglas, he indicated that when Clock against Allen as before this Court — the only question that was before the Court in Clock against Allen just whether the statute that involved in that case was a statute with one valid on its face and it didn’t have before the question of application of that statute.

Daniel M. Cohen:

And it seems to me that as the opinion is written, the opinion rests primarily with relation to the misapplication of the statute upon various law review articles which indicate such misapplication.

Now, that those law review articles including the one which was written by Mr. Meyer are not the product of our judicial system where you get into court and try a case and where you find out what actually happened.

The man who wrote — I said Meyer, I meant Mr. Berman.

The Berman articles are written by somebody who has been testifying at the rate of $500 per day as an expert witness to sustain that position that has been put for in these various cases by iron curtain claimants.

Now, we believe that we are entitled to an opportunity not only to test Mr. Berman’s testimony upon a trial but possibly has followed a job as Mr. Justice Douglas did in analyzing the law review articles at that time that perhaps Mr. Justice Harlan did his homework better.

Warren E. Burger:

Thank you Mr. Cohen.

The case is submitted.

Thank you for submission gentlemen.