Government & Civic Employees Organizing Committee v. Windsor – Oral Argument – April 30, 1957

Media for Government & Civic Employees Organizing Committee v. Windsor

Audio Transcription for Oral Argument – April 29, 1957 in Government & Civic Employees Organizing Committee v. Windsor

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Earl Warren:

Number 423, Government and Civic Employees Organizing Committee, CIO, an Unincorporated Association, et —

Gordon Madison:

May it please the Court.

There isn’t anything mystic or mysterious about the working to labor union.

To put it generally known or how they operate in order to accomplish there objectives.

As to general, all of them believe in the principle of collective-bargaining and they attempt to bring about collective-bargaining agreements.

They use strike in such instances.

Where union and non-union members become in daily contact, you’ll find in sentence on paragraph 1 that should be close shop.

William O. Douglas:

Has Alabama experienced strikes in the case of Government employees, State employees?

Gordon Madison:

That is prohibited?

William O. Douglas:

No.

Has it experience in strikes of — by state employees?

Gordon Madison:

Insofar as I know only there may have been some threats.

They do deal sometimes in picketing.

Then we all know they have designed that this place to the stores, some other places unfair to organized labor.

They insist sometimes on the collection of dues.

They asked the employer to take out the money and remit.

In their meeting they do have political discussions about candidates which they have a right to do, to a certain extent.

And that they used to keep both on regular on (Inaudible) I’m not sure, United State Senate.

We have under the merit system, political activity is prohibited.

Here’s where the borderline will come in these meetings.

It’s difficult to determine.

Except that they have a right to say one will vote or against.

You don’t have the right to get into organization to make speeches and go out and engage in open political activities.

Now, it seems to me that which one all of these things, that could be provided for by the State in its wisdom would be for the legislature to determine.

Maybe some or all of them might constitutionally be prohibited by stand of state employee.

They cannot belong to a union which engages in these activities.

Certainly, that’s true as to collective-bargaining.

I don’t know all the decisions of this Court.

You can’t read them all and you can’t keep up with all them in all the state court decisions.

But I believe this Court has said somewhere along the line that collective-bargaining has no place in public employment.

Gordon Madison:

Now, the District Court has said when this case was before it, contention was made that this Solomon Act which has been read to you all is unconstitutional on its face.

Well, if there is any discrimination in this Act it appears on its page.

The District Court said, we don’t say there’s no way to construe this Act in a constitutional manner.

If it had been unconstitutional on its face for any reason, would there have been any logical reason for abstaining and sending the case back to the state court?

Wouldn’t if federal court have proceeded, is there no way other than to say it’s unconstitutional, would have struck down right then.

And when it came up here wouldn’t this Court have said, “No.

We are not going to affirm.

There is no possible way it can be constitutional.

So, why send it back?”

This Court didn’t do this — do that.

It affirmed to stay in the lower court.

Now, when the union — and I’ll make this point whether there’s anything to it or not, I don’t know what I’m going to mention.

Up to that time, the — the employee have seen and the union have been thriving together.

But when they started in the in the Circuit Court of Montgomery County seeking a construction of this statute, the employee member was dropped or he didn’t participate in the suit.And the union alone brought it.

Why?

I don’t know.

The other side may answer that (Inaudible) anyway.

And then the issue was formulated there.

It seems like it was studiously avoided to bring in any question about the constitutionality of Solomon Act.

Now, we want you to tell us by declaratory judgment because we’ve got a dispute between us, as to whether or not you are a labor union or a labor organization within the meaning of the Solomon Act.

Harold Burton:

Do I understand you to say that the question of constitutionality was studiously avoided (Inaudible)

Gordon Madison:

Well, I said that — yes.

So, I’ll put it this way.

It was not raised.

Harold Burton:

And in the Supreme Court likewise?

Gordon Madison:

And in the Supreme Court likewise.

Harold Burton:

And this was put in neither the lower state court nor the Supreme Court, the State has passed on the constitutional issue?

Gordon Madison:

That’s correct, sir.

Felix Frankfurter:

Did you say it wasn’t raised?

Gordon Madison:

He wanted to know whether not he was a union within the meaning of the Solomon Act.

Felix Frankfurter:

Yes did you — I think, did I hear you say correctly that the constitutionality of the Solomon Act, was not before your Supreme Court in the — in the decision that was — in which an — an opinion was rendered in 262 Alabama?

Gordon Madison:

That’s correct, sir.

And it —

Felix Frankfurter:

(Inaudible)

Gordon Madison:

It was raised neither in the pleadings.

It was argued before the Supreme Court on oral argument.

The constitutional question was not involved.

And it appears in the briefs, I believe.

Now, those briefs were not made a part of this record.

Felix Frankfurter:

What appears in the briefs?

Gordon Madison:

That if there’s no argument, of course, the constitutional question was argued.

But each side stated, as I recall.

There is no constitutional question involved in this case.

Just whether or not (Voice Overlap) —

Felix Frankfurter:

Voice Overlap) — That was in the brief that lead to the decision 262 Alabama?

Gordon Madison:

That was in the brief filed in this — in this case.

Is that correct?

Earl Warren:

Can you supply us with a copy of that brief so we — we may read it for ourselves?

Gordon Madison:

I believe they are in the Court record because they were introduced in evidence on the circuit trial before the District Court.

And I think they were left out being printed, but I believe they are here in this Court now.

Earl Warren:

Now, would you just state as accurately as you can what was stated in that — in that brief to that effect?

Gordon Madison:

In the brief?

Earl Warren:

Well, that’s what we’re talking about isn’t it?

Gordon Madison:

You mean in the state court brief, what was in it or what was left out?

Earl Warren:

On this — on this particular subject that the — that the constitutional question was not being raised.

That’s what I understood you to say as the brief showed —

Gordon Madison:

It was — it was argued in — in substance in that case.

Earl Warren:

I beg your pardon?

Gordon Madison:

That it was argued in substance.

I’ll state the substance as nearly as I can recall —

Earl Warren:

Yes.

Gordon Madison:

— by the other side that they had attempted to bargain collectively with the A.B.C. Board.

At the A.B.C. Board had refused to bargain with them and hence they had ceased any attempt to bargain collectively.

They then said that we have from that time on conducted merely a discussion group.

And being merely a discussion group, we say that the Solomon Act does not apply to us.

And we ask this Court to hold that we are a union and our activities as such.

That we do not come within the provisions of the Solomon Act.

We argued on the other side.

Do you want the other side too, Your Honor?

Felix Frankfurter:

Before you’re going to the other side, let me have no doubt about what you’re saying.

Am I right in inferring from what you’ve just said that the others — that the — the present petitioners for the present appellants they don’t appeal.

But the present appellants in the — in the argument in the proceedings before the Supreme Court of — of Alabama claimed that there were a discussion group —

Gordon Madison:

That’s right.

Felix Frankfurter:

— and therefore, outside of the scope of the Solomon Act.

Gordon Madison:

That’s right.

Felix Frankfurter:

Is that right?

Gordon Madison:

That’s my understanding there.

Felix Frankfurter:

And the Court — and the Alabama’s Supreme Court decided that they were not a discussion group merely —

Gordon Madison:

That’s correct, sir.

Felix Frankfurter:

— but that they were brought, that their activities brought them within the terms of the Solomon Act and that’s all it decided.

Gordon Madison:

That’s right.

Felix Frankfurter:

Is that what you’re saying?

Gordon Madison:

That’s right, sir.

And I want to state that’s the basis for the Supreme Court of Alabama decision.

There should be no mistake between them.

Let me get that clear.

The Supreme Court of Alabama went into the rules of this organization, went into the Constitution.

It went into the law of Mr. Philip Murray when it was setting up, this organization all of which provide for collective-bargaining and it’s in — one of the main purposes and objectives of the union.

It went into the clauses whereby the — the member should take an oath to abide by those rules and regulations.

That then none of them can’t be changed without approval by the executive committee.

Gordon Madison:

They went into the question that this union is connected with the International Union.

And in that constitution of the International provided for collective-bargaining.

And that those rules and regulations constitute a contract between a union and the members and between the members themselves.

And it then went on to say that a local union merely on the whim of a representative or the local group cannot change the declared purposes and objectives of that national or international organization.

And then they —

Earl Warren:

(Voice Overlap) —

Gordon Madison:

— threw him some moreover things about that activities, which I will discuss.

Earl Warren:

Mr. Madison, I haven’t quite got an answer to — to the question.

I understood you to say that petitioner, in its brief in the state court and its argument represented to the Court that there was not a constitutional question involved.

That it was only the question as to whether the ex-conduct of — of the petitioner constituted or brought them in — within the act itself.

Now, is that — I — I just want to know if I’m correct in — in my recollection of what you said?

Gordon Madison:

Well, Your Honor I will put it this way because it — it maybe important, you’ll think.

I don’t want misstating it.

My recollection is that it occurs in both briefs.

I know it does in the brief filed on behalf of the State.

What I know is that we did argue — argue the constitutional question for fear that the Court might say this is of such public importance or something.You go ahead and deal with it anyhow.

What we stated before we did that, we didn’t think that question was in and had been raised.

Earl Warren:

But you —

Gordon Madison:

In my recollection is they did the same thing.

Earl Warren:

You —

Gordon Madison:

But I’d rather rely on these briefs.

They’re here and in order that you may determine for yourself just exactly what they did say.

Felix Frankfurter:

But you — you went beyond that.

You also said, if I understood you correctly, that the pleadings disclosed that the constitutional — that there was no constitutional attack on the Solomon Act.

Gordon Madison:

That — well, I — it — it doesn’t it — I’ll put it this way.

I’ll put in the reverse.

There’s nothing mentioned in the pleadings that the Solomon Act is unconstitutional.

Felix Frankfurter:

All right.

What — would you mind stating what is meant, what — what proper inferences may be drawn from the judgment of the Montgomery County decree saying the prayer for injunctive relief is denied.

But what’s the significance of that?

Gordon Madison:

Well, they asked that the — the members of the A.B.C. Board and this manager of the store, the supervisor of all to be enjoined from enforcing the provisions of the Solomon Act.

Now, they did that on a theory, I guess, if they thought they were not under it and A.B.C. Board was attempting to apply it to them, that you ought to be enjoined from that.

Felix Frankfurter:

And did the prayer, that’s your remark a little earlier that the pleadings did not attack the constitutionality?

That covers I take it, the terms of the prayer by the complainant before the Montgomery County Court?

Gordon Madison:

Our recollection is correct.

Felix Frankfurter:

But they did not say a wherefore (1) the Act is unconstitutional.

Wherefore (2) proceedings under it or acts under it should be enjoined.

As far as, my recollection am I wrong or right in — in having an impression that in your State, you can, one can get an advice from somebody.

The Governor or the legislature you can get an advice of the opinion?

Gordon Madison:

The Governor can ask for an advice or opinion and so can members of the legislation but nobody else can.

Felix Frankfurter:

Nobody else.

Gordon Madison:

And they don’t have any force or effect of law.

Felix Frankfurter:

No, but as of the — the Governor in the legislature.

Gordon Madison:

That’s all that I know of.

Felix Frankfurter:

But by statute —

Gordon Madison:

Though lots of them will try to get them with the admonition.

Felix Frankfurter:

Is that by statute or your constitution?

Gordon Madison:

I’d — I don’t whether — I don’t recall whether it’s constitution or the statute.

Felix Frankfurter:

All right.

Gordon Madison:

Now, after — after the Supreme Court had gone into these things that I pointed out, the constitution and rules of the — this organization and — and make that declaration for whatever they be aware.

Now, that case then went back to the District Court for the second time that court had let it stand for a reasonable time.

In order to enable the appellants and I point that isn’t one of them that makes (Inaudible), showing the remedy, he might have in the state court.

And then insisted in that court, that the District Court then pass on the constitutional issues which it raised when it first filed the suit.

Then the three-judge District Court, we had a hearing and argument up there.

We introduced the record that before the Supreme Court of Alabama, introduced the briefs on both sides.

And then Judge Graves who was the presiding judge in that case along with Judge Grooms and Judge Lynn.

They stated that they had given careful consideration to the decision of the lower court, that is the lower state court and the decision of the Supreme Court of Alabama and used the language, as I recall that they were clear to the conclusion that the state courts had not construed the Solomon Act in an unconstitutional manner.

William J. Brennan, Jr.:

Excuse me.

Can you please tell me what — what’s your understanding of this allegation of the complaint?

I’m looking at page 77, tenth paragraph.

William J. Brennan, Jr.:

Reads substantial civil and property rights are depended upon the determination of this controversy and the actions of respondent consisting of the said statue applies from plaintiff and its members and so forth.

Gordon Madison:

What do you — you mean, Your Honor that you might sort of stretch that a little bit to get it cover the constitutional question?

William J. Brennan, Jr.:

I’m asking you what it means as you understand it.

Gordon Madison:

Where does that appears, sir?

William J. Brennan, Jr.:

It appears in paragraph 10, the second sentence, substantial civil and property rights are depended upon et cetera.

Gordon Madison:

Well, in short I think it means, Your Honor, that they’ve been losing $2 a month per person in dues.

And if you construe this, actually it was not to embrace them they’d be able to have those members participate for the collection of dues.

Felix Frankfurter:

What happens after the Alabama Supreme Court got through because of what they did in 262.

Is that automatically does that go back to the Circuit Court of Montgomery County or automatically that’s just an affirmance of the decree below?

Gordon Madison:

It was an affirmance of the decree below.

Felix Frankfurter:

How did you know (Voice Overlap)

Gordon Madison:

They didn’t file an application for rehearing.

They didn’t seek to have any determination and the further determination if one could be had and I don’t whether it could be if not by this Court or what Supreme Court of Alabama.

Felix Frankfurter:

That is — that is Montgomery — what you say — to see if this is correct, in your — in your point of view.

That the Montgomery — the county court of Montgomery County or the Circuit Court of Montgomery County in effect had before it a prayer for a declaration whether this union or this organization is within the Act period.

They said they were within the Act.

So, therefore, they wouldn’t enjoin.

Then went up to Supreme Court, the Supreme Court said yes, you’re within the Act period.

And that’s all.

Is that right?

Gordon Madison:

That’s correct.

Felix Frankfurter:

That’s your view, of what took place in the Alabama court?

Gordon Madison:

That’s correct, sir.

Felix Frankfurter:

And no more?

Gordon Madison:

No more.

William J. Brennan, Jr.:

I’ve thought your position was that the petition, Alabama court the second clause it says looking for the old picture.

This (Inaudible)

Gordon Madison:

Well it did, Your Honor, but I think what — what I meant was that’s the same thing that he asked, if — if I understand it correctly.

I don’t get the distinction between them.

William J. Brennan, Jr.:

But did the Alabama Supreme Court say, you notice of Internal organization?

Gordon Madison:

No, sir.

William J. Brennan, Jr.:

I — I understand it, within the purview of Solomon Act.

Gordon Madison:

No, sir.

They did not say that.

William J. Brennan, Jr.:

What did they say?

Gordon Madison:

It said that you’re not a discussion group.

William J. Brennan, Jr.:

That’s what I thought.

Felix Frankfurter:

And therefore, and therefore it was within the Act?

Gordon Madison:

That’s right sir.

William J. Brennan, Jr.:

It forces within the Act.

Felix Frankfurter:

Period.

Gordon Madison:

Period.

And they, they got my period in the wrong place.

But I understand to be in the right place.

Felix Frankfurter:

I understand that.

Gordon Madison:

Now, I do wish to deal just briefly in conclusion with this.

As I said, that the courts have said, this Act could be construed on a constitutional manner.I think that means something.

I think that take cares of some their argument about discrimination.

But as I pointed out, that the labor relations in different parts of the State of Alabama, as if the different county Government body, the different city Government bodies and difference maybe among the teachers and the Board of Education.

It may be necessary and desirable into some parts for the local communities to legislate by ordinance of resolutions or by rule or some other way.

Either one way another on these questions.

Now, yesterday, Mr. Chief Justice has been asking about the higher institutions of learning.

Earl Warren:

Yes.

Gordon Madison:

Over in the University of Alabama, are possibly our two largest.

They are governed by Board of Trustees.

And it — the — it is provided on their constitution that the sole management and control of those two institutions, shall vest in the Board of Trustees.

Now, maybe the others are covered in the exemption containing the statute or that’s are not covered by the Solomon Act, to — to have Board of Trustees or some other civil board.

They undoubtedly have rule-making power just exactly like of County Board of Education or City Board of Education.

If they adopted the rules, the question would be as — as I conceive it to be whether not that rule that they’ve adopted proscribing public employment, of course, of membership to the labor union whether or not that was a reasonable rule.

I believe this Court have said that there is constitutional protection to a public employee against unreasonable arbitrary action.Now, with sum on all of these reasons I pointed out about the activities of — of the labor union they maybe entirely in order — entirely order permissible in private employment but not in public employment.

Earl Warren:

What — what percentage of your employees of your port authority that — that’s mentioned in here, along the brotherhoods?

Gordon Madison:

Your Honor that their game there maybe a dispute.

It’s not the purpose between counsels.

It is my — if my recollection of what that act provides and what our state statute said that all of them belong, because all of them are railway employees.

Now, I understood him to say yesterday that there were some excluded who worked for the docks that were not railway employees.

Now, it’s marked in the section that that is a mistake that I think the one that excluded the whole railway employees.

Earl Warren:

Well, does the Act say so?

I don’t (Voice Overlap) —

Gordon Madison:

It refers to another Act in the code and that Act said so.

Earl Warren:

Oh, I see.

Gordon Madison:

And, I think it had the same situation that refered to that when it was up here.

They did the same thing and your Court pointed that and sees nothing wrong with it.

Felix Frankfurter:

Mr. Attorney General —

(Voice Overlap) —

Felix Frankfurter:

— I think it — I think it’s appropriate for me to say it, as I’ve now examined the brief for both sides for the Supreme Court of Alabama and the reply brief of the appellant in this case.

They are here and in typewritten form.

And I — on my examination you are fully correct that the issue that was posed before the Supreme Court was the issue of construction.

And in the — but this qualification which I do not think is a qualification that the appellants here urged their construction on the ground that a different construction would raise constitutional questions.

But the issue of whether or not the Act itself is constitutional was not as an issue put before that Court.

You say in this present suit, an answer was filed by the respondent and the sole issue is whether or not the complaint is the labor union or other labor organizations within the meaning of the Solomon Act.

And the reply brief by the present appellant takes up questions that were evidently put from the bench in the argument before your Supreme Court and the reply brief does not raise constitutionality but raises the question whether this is an organization that comes within it by virtue of its activities or whether it’s the debating or a cultural organization.

I think you’re wholly correct — you are wholly correct in my reading of the brief as to the issue that were put before the Supreme Court of Alabama.

Gordon Madison:

Thank you.

Earl Warren:

Mr. Shadur, and would you respond to that particular phase of the case please?

Milton I. Shadur:

Yes, Your Honor I will.

Mr. Chief Justice if it please the Court.

I think that a good deal of clarification can be obtained here if we see exactly what the course of this litigation was and why the issues were raised in the places that they were.

We start out with the immediately prior to the passage of the Solomon Act with this union which engaged in activities which we will assume for the moment are constitutionally protected.

Now, then, the Solomon Act is passed at that point.

In literal terms the Solomon Act applies to the point of union.

Milton I. Shadur:

At that point employees begin to leave it and the union goes to a point where from 250 members you end up with one.

We, thereupon, go into the Federal District Court in order to challenge the constitutionality of the Solomon Act.

And the Court tells us, “No.

You can’t do that because although perhaps the Solomon Act literally read, is unconstitutional.

We cannot presume that the Alabama courts will so construed it.”

They then say, “We will abstain from exercising our jurisdiction until such time as a construction of the statute may be obtained from the Alabama courts.”

Now, then, we go into the state courts.

We file the same complaint because we have the same activities.

But because we’re doing it in order to obtain a construction so that the constitutional question which is then pending before the District Court, the United States District Court can be raised with the benefit of an authoritative construction of the Act, we then raise it in exactly the manner that Mr. Justice Frankfurter has stated.

We put the fact situation before the Court.

At that point having put the fact situation before the Court we say, give us a declaratory judgment on this real controversy which exists between this union and the State of Alabama as to whether this statute on these activities can apply to this union.

Because if it is applied, it would raise serious constitutional questions.

And we stated specifically in the complaint that the purpose of this action, and this is at pages 77 and 78 of the record.

This bill for declaration of complainant’s rights is brought in part pursuant to the judgment of the United States District Court for the Northern District of Alabama Case Number 7466.

And we asserted that the respondents —

Hugo L. Black:

You’ve read that though (Inaudible)

Milton I. Shadur:

Pardon?

Hugo L. Black:

To obtain (Voice Overlap) —

Milton I. Shadur:

To obtain construction by the Courts of Alabama which is exactly the reason that we were bringing the complaint.

Hugo L. Black:

Why’d you — why’d you allege that the Act is unconstitutional in the petitioner, in you complaint?

Milton I. Shadur:

Why did we —

Hugo L. Black:

Where’d you allege that?

Milton I. Shadur:

In which complaint, Your Honor?

Hugo L. Black:

In the state court.

Milton I. Shadur:

In the state court, the only reference to a possible allegation of unconstitutionality is the one that Mr. Justice Brennan referred to in paragraph 10.

But we specifically brought this action for construction, for a declaratory judgment because the federal court already had jurisdiction, for purposes of determining the constitutionality.

William J. Brennan, Jr.:

Well, it’d fair to say that you neither sort nor desired a determination of the Alabama court on the issue of constitutionality because you felt that was pending in the federal court and wanted it determined there?

Milton I. Shadur:

That’s correct, Your Honor.

We already had a case pending.

The only reason for any Alabama state court proceeding at all is because the judgement of the Alabama state courts on what the statute means, on the construction of the statute, is binding on the federal courts but the court which first had jurisdiction was the Federal District Court, the three-judge court.

Milton I. Shadur:

That was a court in which the constitutional question had been raised and was pending subject only to the obtaining of a construction to see whether our constitutional question may not have been premature but —

Felix Frankfurter:

But must the Alabama Supreme Court decide constitutionality on an argumentative implication that the issue before Federal District Court involved constitutionality if they construe it this way?

Can Alabama Supreme Court — were the tedious people, and there’s a good deal of respectful autonomy between state courts and federal courts.

Why can’t the Alabama or the Supreme Court says if you want us to declare these unconstitutional aspects?

Milton I. Shadur:

Well, Your Honor, the Alabama Supreme Court in the question as presented to us, is confronted with an argument that if it construes the statute so as to cover these activities, serious constitutional problems will be raised.

If the Alabama Supreme Court, nevertheless, applies the statute to us, the constitutional question which we have preserved in the three-judge District Court is at point available to us and ripe for determination.

Felix Frankfurter:

But — but really if you say to the Alabama Supreme Court or to this the constitutional questions are avoided if you construe it one way rather than another, that isn’t a necessary and automatic rule that it must construe that way.

That is a proper consideration as this Court indicated yesterday.

If you please, an important one in construction.

But the Alabama Supreme Court for within its power, about which we can say nothing, thought the consideration which were urged to give it one construction rather than another, didn’t require that construction.

And it came to an end.

And it — in its determination with that.

So, that isn’t an implication that it would declare that the statute unconstitutional if that issue were pressed before it.

Milton I. Shadur:

That’s correct.

Felix Frankfurter:

That both progress themselves with issues that are pressed before it.

Milton I. Shadur:

That’s correct, Your Honor.

Felix Frankfurter:

Occasionally, rarely and not often wisely they take matters to respondent.

But on the whole if one can say we’ll only adjudicate the matter that’s pressed before us.

Milton I. Shadur:

And that’s correct, Your Honor.

And the only reason that we were in the state courts was to secure the construction.

This is exactly —

Felix Frankfurter:

Were you barred by — I don’t know — I think about it, needless to say.

Were you barred by Alabama, by local law from asking the Court that if you are honest you decide if this Court, you decide the construction question against us then 0.34 whatever it is, then we insist that the statute is unconstitutional.

Did you ever do that in the Alabama’s Supreme Court?

Milton I. Shadur:

No, Your Honor we did not.

William J. Brennan, Jr.:

Do you place particular significance in the fact that this three-judge proceeding was pending in the District Court?

For example, suppose you had not brought any proceeding at all in the federal court until after the proceeding in the Alabama court.

Milton I. Shadur:

Yes, sir.

William J. Brennan, Jr.:

Would you have been in a better or worst position in your view than you are now?

Milton I. Shadur:

I think we would have been in the worst position in that situation.

Milton I. Shadur:

I think, that the pendency of the — the three-judge court proceeding and the fact that our proceeding into the Alabama courts was in order to comply with the judgment of the three-judge court is a — is an extremely significant fact in this case because we were directed to go to the Alabama courts, not directed to go there to — to raise the conditional question —

William J. Brennan, Jr.:

Did you have any feeling that you would be barred under the instructions you had from the District Court from raising the constitutional question in the Alabama court?

Milton I. Shadur:

No, Your Honor.

It was not a question of barring.

It was a question of — of the terms of the direction which the District Court gave us.

William J. Brennan, Jr.:

You comply (Voice Overlap) —

Milton I. Shadur:

The District Court then told us —

William J. Brennan, Jr.:

(Voice Overlap) —

Milton I. Shadur:

— to go, to get a construction of the statue and go to get a construction of the statute we did.

And we obtained that construction.

Now then —

William O. Douglas:

Is that order in the record a — when they requested that you go to State?

Milton I. Shadur:

Yes, Your Honor.

That is in the record.

You’re having to hear it.

Felix Frankfurter:

(Inaudible)

Milton I. Shadur:

I’ll find it.

And that’s — in the — at page 50.

Pages 49 and 50.

Thank you.

Milton I. Shadur:

Providing that the action is not dismissed but is retained and will remain pending for a reasonable time to permit the exhaustion of such state administrative and judicial remedies as may be available.

And immediately following that on page 50, was our emotion filed in the Court in which we advised them that pursuant to the order of the Court entered on November 9, appropriate proceedings will be brought promptly by plaintiffs for construction of the Alabama statute here involved.

Now, then, having —

Earl Warren:

Mr. Shadur —

Milton I. Shadur:

Yes — yes, Your Honor.

Earl Warren:

— before you — you get off of that matter.

Can we assume that you and the — and the Attorney General are — are in accord, to the effect, that the question of constitutionality was not raised either in your briefs or in your arguments in this proceeding?

Milton I. Shadur:

Yes, Your Honor.

Except in the inferential manner to which Mr. Justice Frankfurter has referred.

In the — in the brief at page 2 in the Alabama Supreme Court, the step, the —

Was your —

Milton I. Shadur:

— appellants here, in our brief had as Point C.

“If the statute be construed as the community insists, grave issues as to it’s constitutionality will be avoided there,” and it goes on citing the same cases which we refer to here, Wieman against Updegraff.

Stating that that is so, that is the avoidance of the constitutional issues because public employees enjoy all the constitutional rights guaranteed by the Due Process Clause.

They cannot be removed from public employment in violation of those basic rights.

Citing Wieman, we go on to say that the Alabama statute before this Court, if applied to this committee would be incompatible with an exercise of the rights of free speech and free assembly, quoting and citing from Thomas against Collins.

And stating, referring specifically to the Federal District Court proceedings in which we had challenged the unconstitutionality, referring to what the Federal District Court had done in directing us to go to the Alabama court and stating that this is why we were before the Alabama court.

Felix Frankfurter:

Would you mind stating whether there’s anything in what appeared before the Supreme Court of Alabama that would preclude that court today?

An issue was before it in agreeing to your argument before this Court that the statute offends the Equal Protection Clause in its exception without at all, even (Inaudible) to adhere to that before that court, that advice which you now claim as a serious body?

Milton I. Shadur:

My recollection, Your Honor, is that the — the argument which is now appraised as the Equal Protection argument in this Court was not raised in a similar manner to the one that I’ve just read —

Felix Frankfurter:

But the (Voice Overlap) —

Milton I. Shadur:

— before the Alabama Supreme Court.

Felix Frankfurter:

— argument isn’t the — isn’t that — isn’t discrimination?

Milton I. Shadur:

No, Your Honor.

That we — I say that that argument was not raised in the same term.

Felix Frankfurter:

But — you — you urge that strongly here.

If you read —

Milton I. Shadur:

Yes, Your Honor.

And I think that it’s a substantial point here.

Felix Frankfurter:

But I’m not questioning that.

I’m merely suggesting that nothing that the Alabama Supreme Court would bring any (Inaudible) difficulty in its way of deciding, of saying that issue never went before us.

We see its substantiality, we yield to it.

Is there?

Milton I. Shadur:

Your Honor, the Alabama Supreme Court is on the very issues which are here stated, conscious of the United States Constitution, has held this union and its activities as coming within the Solomon Act.

At the time when it knew that we have a pending proceeding which involved and attacked on the constitutionality of the Act if it were applied to our organization and with an argument that raised that problem.

Subsequent to that ruling, we came back to the United States District Court and said we have an authoritative construction, which is what you sent us to Alabama for.

And having obtained that construction we know say, that this statute as so applied to us, is unconstitutional.

Harold Burton:

But then if we should rule upon the — on issue as now presented to us and would mean that we might be declaring unconstitutional, an act of the State of Alabama, the Supreme Court of Alabama has not passed on that issue.

Milton I. Shadur:

Well, Your Honor, in — in passing on the application of the statute the state Supreme Court has reviewed in all aspects, whether this statute can or cannot covered our union.

In exactly, the same manner as for example in the Spector cases, which came before this Court, in which there was also the situation of abstention from jurisdiction.

Milton I. Shadur:

And after this Court directed the plaintiffs in that case who were attacking the unconstitutionality of the Connecticut taxing statute, directed those people to go to the state courts of Connecticut.

The Supreme Court of Connecticut refused to pass on the — on the question of the federal constitutional right.

It decided what the construction of the statute was, in light of the fact, that there was already a District Court proceeding pending.

And armed with that construction, the plaintiffs then came back to the federal courts and came to this Court and this Court decided the merits that that statute as so applied by the Connecticut Court was unconstitutional.

Harold Burton:

This case, the Federal District Court held the case and — and asked you to go back and exhaust your state remedies.

You went back and exhausted them on the — on the statutory construction but didn’t say a thing about the constitutional question that’s not been exhausted.

Although it’s within their jurisdiction to pass on it.

Milton I. Shadur:

Well, the exhaustion of the state remedies that was directed by the United States District Court was to secure a construction.

Because the thing that the United States District Court hypothesized, Your Honor, was that it was possible that this statute although literally it did not so read, might be applied only to cover an organization in which members belong for the purpose of engaging in collective-bargaining.

That issue is no longer in this case.

This has — we have arrived at a conclusive construction and we know have the opportunity to raise this problem.

Earl Warren:

Are there any authoritative finding on the part of your — your Supreme Court in Alabama, to the effect that this Act as applied to you is constitutional?

Milton I. Shadur:

An authoritative finding in the Alabama Supreme Court?

Earl Warren:

Yes.

Milton I. Shadur:

There is no specific statement in the holding with respect to that problem, to my recollection.

I might say —

Earl Warren:

How — how can we know then that they would find that — that is the fact?

Milton I. Shadur:

The Attorney General, also argued and much more directly than our argument in the briefs, in the Alabama Supreme Court, that the Solomon Act is valid and is not subject to constitutional objection.

Necessarily, the Alabama Supreme Court’s decisions with the arguments that had been placed before it, subsumed the constitutional question even though that they may not have said in so many terms.

We find that we can constitutionally do so.

They have said, “Well, we don’t think that the activities of these people are strictly such and so.

We also find this and therefore this people are a labor union within the meaning of the Solomon Act.”

But having had the arguments presented to them, if they did, both by the Attorney General and by ourselves, they necessarily had to pass that problem in order to find the statute applied.

Because if they found the statute applied and as so applied was unconstitutional, then they would either have to say, “We will construe the statue differently” or we will say that it would apply, but having so applied it, it is unconstitutional statue.

Earl Warren:

Well, but — you — you rely heavily on the question of discrimination here.

Milton I. Shadur:

That’s correct, Your Honor.

Earl Warren:

You did not argue that all before the Supreme Court of the State, as I understand.

Milton I. Shadur:

That’s right, Your Honor.

Earl Warren:

Now, suppose that we didn’t take any stock in the rest of your argument, but did rely on that.

Would there have been a finding in your Supreme Court based upon on argument, that — that it was not subject to the objection of discrimination?

Milton I. Shadur:

Well, in order to avoid that problem, I am prepared to say that the — that discrimination argument from our point of view is a constitutional argument in this Court.

We would — if — if that were a preliminarily question, we would consider that only to the extent that it indicated a violation of due process.

So, there is no — in other words, that the due process argument is enhanced by the exclusions from the statue to the same extent that the basic classification is arbitrary.

So, are the exclusions arbitrary and show a due process violation.

Felix Frankfurter:

(Voice Overlap)

They’re quite unrelated.

Milton I. Shadur:

I agree, Your Honor.

I say that the —

Felix Frankfurter:

You mean that — of the statute might be as constitutional — might be completely void of any difficulty with the Due Process Clause and yet they found on the Equal Protection Clause.

Milton I. Shadur:

That’s correct, Your Honor.

I’m saying that this statute —

Felix Frankfurter:

It’s projecting the Equal Protection Clause out at just the face of due process.

Milton I. Shadur:

No, Your Honor.

I’m not attempting to do so.

I say that — I think that this statute flounders so badly on the Due Process Clause that the Equal Protection problem is not necessary to the case.

Felix Frankfurter:

No.

But you may not agree with your — the Chief Justice —

Milton I. Shadur:

I —

Felix Frankfurter:

— says, we may be more impressed by the exemption.

Milton I. Shadur:

I can only hope that you do, Your Honor.

Felix Frankfurter:

[Laughs] It’s a good hope to be probable.