Philbrook v. Glodgett – Oral Argument – March 25, 1975

Media for Philbrook v. Glodgett

Audio Transcription for Opinion Announcement – June 09, 1975 in Philbrook v. Glodgett
Audio Transcription for Oral Argument – March 24, 1975 in Philbrook v. Glodgett

del

Warren E. Burger:

We’ll resume arguments in number 73-1820, Philbrook against Glodgett and the related case.

Mr. Kohn, you may proceed.

Richard S. Kohn:

Thank Your Honor.

Good morning Mr. Chief Justice and may it please the Court.

The issue presented by this case is whether children who are in need due to the unemployment of their fathers can be denied assistance under the unemployed-fathers program solely because their father is eligible for an amount of an unemployment compensation no matter how small.

The District Court applied the plain meaning of Section 607 (b) (2) (c) (ii) of Title 42 and held that the statute only applies to actual receipt and that the father has an option of declining to accept his unemployment compensation in accepting ANFC UF if those benefits are higher.

Just a few days ago, this Court in the case of Alcala versus Burns applied the ordinary language rule and we asked the Court to do that in this case and affirm the judgment of the District Court.

First of all, the language of Section 607 (b) (2) (c) (ii) is absolutely clear refers to receipt of unemployment compensation benefits is working the disqualification.

The — there are substantial evidence and other provisions of the same statute that if Congress wanted to say eligibility for receipt, they knew have to do so.

In a statute — in the section of the statute immediately preceding the one at issue here (b) (1) (c), the Court had to — the Congress referred to eligibility requirements for AFDC and the in the course of that statute which is enacted on the same day as 607 (b) (2) (c) (ii), the Court used the language qualified to receive and refers to another section of the statute which defines that as being eligible for the receipt of benefits upon the filing of an application.

So, it’s perfectly clear that if the Congress had intended to refer to eligibility for receipt in the subsequent section, they could’ve done so by referring to Section (d) (3).

Also, in Section 602 which is this Court knows from the Alcala versus Burns case has to do with the requirements of state plans which must be included if HEW approval is to be obtained.

There’s a Section 602 (a) (12) which has to do with receipt of all the aid assistance and that provision says that if a failing receipt or for recipient in a household receives all the aid assistance during the period that he does so, the family is disqualified or that person cannot be included within the assistance group.

The legislative history of 602 (a) (12) which is found in 1950 US Code in congressional administrative news at page 3479, this is not cited in my brief, indicates that with respect to that old aid assistance provision, the Congress was clearly concern about double benefits that a family should not be able to receive both.

And since the Congress used the language “is receiving” in that Section and “are receives” in the Section before the Court, we think that that is evidence that when Congress was concerned about double benefits, that was the language they used.

And also in Section 602 (a) (15) which has to do with providing advice to recipients of AFDC about birth control, the Court specifically — the Congress specifically used the language “eligible for receipt or receiving.”

So, it’s perfectly clear from related provisions of the Act that when Congress wanted to refer to eligibility to receipt they could do so and they did on several occasions.

Byron R. White:

Do you have any specific legislative history that supports your reading on the statute?

Richard S. Kohn:

Your Honor the — I find the legislative history very confusing.

I can’t say that it supports me, I can’t say that it goes against me.

I think it silence on the point.

The only time that the Congress referred to this — the disqualification of an unemployment compensation benefits was in a different context.

They were concerned about the situation where family was receiving unemployment compensation, it ran out in the first week of the month to the second week of the month and under the 1967 statute, the family was then disqualified from receiving any AFDC for the entire month.

And that was the question that Congress addressed in the legislative history.

I asked the Court to apply the rule that where the legislative history would tend to confuse the issue or sheds no light on it that the plain language of the statue should be followed.

It’s important to recognize that until from 1935 until 1961, there was no unemployed fathers program.

In 1935, Congress created the program, it was an optional program to be applied by the states if they desire too and they also made it optional in the states is to whether they wanted to supplement inadequate unemployment compensation benefits with AFDC payments.

And of the 22 states that had the program, all but three permitted supplementation of benefits and the obvious reason for doing this was the gross in equity of having certain children who may have received $20.00 or $25.00 of unemployment compensation and then in comparison with other families they could’ve received several hundred dollars in terms of AFDC.

Now, there’s no question that in 1967 — I might add that at the time the 1960 amendment was enacted, the country was in an economic recession and at the same time that Congress enacted this provision, they also enacted the Temporary Extended Unemployment Compensation Act.

So, it’s clear that while Congress may have regarded unemployment compensations the first line of defense, after 61 it was not the exclusive line of defense and Congress recognized that unemployment compensations which is not designed to satisfy the needs of the family might be inadequate.

Audio Transcription for Oral Argument – March 24, 1975 in Philbrook v. Glodgett

del

Richard S. Kohn:

In 1962, Congress had the opportunity to revoke the legislation or not renew it and yet they decided to continue it for another five years.

There’s no question that in 1967, Congress made a change.

They no longer provided for the supplement but the big question is whether they intended to bar all those families that were receiving unemployment compensation for many assistance or whether they were going to permit the family an option.

Now, we argue that the Congress must have intended an option not only because the plain language says so but the equity demands it.

And we argue that this is not — it — this doesn’t undercut the unemployment compensation system and that it certainly is designed to make sure that all children who are similarly situated are treated alike.

Byron R. White:

Well, is there ever been a time when the amount of unemployment compensation approximated the amount of benefits?

Richard S. Kohn:

Yes Your Honor, there’s no question that in — depending on a particular situation the amount of unemployment compensation may exceed the amount of AFDC and in that situation, —

Byron R. White:

Is that the amount?

Richard S. Kohn:

Yes Your Honor.

It — because unemployment compensation depends entirely on the amount of money that the wage earner earns and if you have a wage earner who’s making a good income with a small family, the amount of unemployment compensation which is set at one-half his average weekly earnings could very well exceed the amount of AFDC.

But our point is that for low income families and for the AFDC population, it’s highly unlikely that unemployment compensations would exceed AFDC.

Now, the state has argued that the Congress may have intended that unemployment compensation benefits in an inadequate amount could be supplement with general assistance which is a wholly state funded program.

I would refer the Court — and that that general assistance could bring the family up to the state needs standard.

In our — in the appendix on pages 29 and 63, the Court will find certain interrogatories that we served on Bert Smith who was a director of AFDC in Vermont and his answers to the interrogatories, the answers are on page 63.

And in numbers eight and 10, he was asked specifically whether general assistance would bring the family up to the state need standard.

And he responded that it would be highly unlikely.

General assistance is intended as a short term resource to deal with emergency situations, it pays the rent, it pays the oil bill but it’s highly unlikely that it would bring the family up.

And as a matter of fact, each of the — the named plaintiffs in our case did receive a slight kind of general assistance at some point when they were receiving unemployment compensation.

And each of those cases the amount of the joint benefits was below what they would’ve received under AFDC.

Warren E. Burger:

What would be the situations Mr. Kohn hypothetically if a man, unemployed receiving unemployment compensation insurance or having to take in whichever option he wanted, then on reporting is offered employment, that suitable employment, that refuses to accept it, would — that would affect his unemployment compensation claim in such able?

Richard S. Kohn:

Yes Your Honor.

Warren E. Burger:

What effect if any would it have on the welfare payment?

Richard S. Kohn:

Exactly the same.

Warren E. Burger:

Same in each case?

Richard S. Kohn:

Yes Your Honor, a recipient of AFDC UF is required to actively seek employment if he refuse to take it the family would be disqualified.

That’s my understanding.

Warren E. Burger:

Puts a hardship on the family as the consequence of the conduct of the father, does it not?

Richard S. Kohn:

That’s true Your Honor but it’s my understanding that that’s how the program operates.

Potter Stewart:

That is the same criteria?

Richard S. Kohn:

I believe so.

Audio Transcription for Oral Argument – March 24, 1975 in Philbrook v. Glodgett

del

Potter Stewart:

For AFDC UF unemployed father?

Richard S. Kohn:

I believe so.

In other words, a father cannot accept the assistance from the state and yet refuse to go to work if the work is offered.

Also, there is a provision of the AFDC statute which is designed to encourage the man to go to work.

So, that if he works under a hundred hours a month, he can — the income he earns is deducted from the AFDC grant but his family still receives benefits as long as his earnings are below the state need standard.

But I believe if he refuse to accept suitable work, there will be a disqualification.

Potter Stewart:

Of course he — if he then just left his family, his children would suffer, this aid continue to get AFDC under the —

Richard S. Kohn:

That’s correct Your Honor.

Potter Stewart:

— family program.

Richard S. Kohn:

And as a matter of fact, that would be a consequence of the — of interpreting these provisions as a mandatory bar.

Fathers are actually encouraged to leave their families so that the remnants can receive AFDC under Section 606 and the father can continue drawing his unemployment benefits and that would be an absolutely observed result.

Also, the children who were hurt are children whose fathers have been laid off or who are eligible for unemployment compensation.

The paradox is that if a father quits his job without good cause or for some reason because is ineligible for unemployment compensation, his children actually benefited because they receive more money and that’s an incredible result.

Warren E. Burger:

I suppose there are some difficulty in making comparisons because the unemployment compensation is a terminal kind of payment and the welfare payment is open end, is it not?

Richard S. Kohn:

Well, I’m not sure —

Warren E. Burger:

Very largely open end?

Richard S. Kohn:

I’m not sure it’s true with respect to the UF program Your Honor.

The UF program is designed to deal with the needs of children who are deprived of parental care support due to the unemployment of the parent.

Like unemployment compensation, the objective is to try to get the parent back to work and if there is suitable employment available then once the father goes back to work, if he’s working over a hundred hours a month, the grant would seize.

And is the same with unemployment compensation, the big difference in the program is that one is based on the actual needs of the family and the other isn’t.

The father could have a marginal job earning $100.00 a week, if he becomes unemployed he’s entitled to a maximum of 50 week — $50.00 a week in benefits while the family under AFDC could be eligible depending on its size for many hundreds of dollars.

William H. Rehnquist:

More than the father earned when he was working at $100.00 a week?

Richard S. Kohn:

Well, that would depend on the size of the family and other factors Your Honor.

I suppose it’s —

William H. Rehnquist:

Assuming from what you just said, I would gather that’s true.

Richard S. Kohn:

I would expect in some situations it might be true.

If the family meets the eligibility criteria for AFDC, then the amount of the grant depends on the size of the family and the amount of rent they have to pay in that sort of thing.

And in some cases, I suppose it could exceed his earnings.

Now, if the Court agrees with us, it is a fact that since 1968 when this legislation was amended HEW even though its regulations says that it is the receipt of benefits that works the disqualification.

The secretary has interpreted this to mean eligibility for receive and the state and the HEW has argued that this interpretation should be given great weight by the Court.

Audio Transcription for Oral Argument – March 24, 1975 in Philbrook v. Glodgett

del

Richard S. Kohn:

We would ask the Court, first of all if it agrees with our — and if it agrees with the District Court that the statutory language is plain then under Shea versus Vialpando there would be no reason to consider the secretary’s opinion on the matter.

At any rate, his interpretation has a clear variants with his own regulation which does speak in terms of receipt of assistance.

The — in footnote 4 of its brief, HEW has suggested that one reason why Congress would not have used the language “eligibility for receipt” would be that they were concerned about a gap between the time the father applies for an unemployment compensation and the time that it is granted with the implication that AFDC benefits should be available to the family within that period.

This maybe true in some circumstances but I think it would be a fairly rare situation.

Unemployment compensation benefits are available after a one week waiting period.

This is true in Vermont and I believe it’s true in most other states.

Under HEW regulations, the state has 45 days in which to give an eligible person his AFDC money.

In Vermont, it’s a 30-day waiting period and in Vermont, if there is any kind of gap between the time the man applies for his unemployment benefits and the time he gets them that is taking cared of by general assistance to tie them over.

But it certainly not the general rule that any problem would be created by that hiatus in time.

Now, we have asked the Court that if it should reverse the District Court on statutory ground that it should reach and decide the constitutional question and the — it’s true that the District Court did not reach that question.

However, it was fully briefed and argued downstairs unlike the Alcala case it has been briefed in this Court and we would argue that the exigencies of the economic situation require the Court to go ahead and decide that issue.

The case will affect 25 states that have the UF program and there are many thousands of children who would be affected.

We believe that the standard review was that — that was enunciated in the Marino case and some have argued that that is sort of a strict rationality standard and that the government must show that whatever objective the provision serves must be furthered by the statutory classification.

And it’s our contention that this statutory classification serves no governmental purpose.

And certainly doesn’t serve the purposes of the AFDC UF program which was designed to take care of needy children and even if you — even if one of the objectives was to try to make parents self-supporting and get them back to work that’s taking cared of by provisions within the AFDC statute.

The government has argued that one rational basis would be that there’s been a historical reliance on unemployment compensation as the first line of defense for unemployment.

I would say that for purposes of this argument, we would concede that Congress has not have to and not the UF program if they choose not to and that there are distinctions that could be drown between that and the situations described in Section 606.

But once Congress has recognized the problem and enacted an unemployed-fathers program it can’t then divide that class of children into sub groups based on whether the father receives a source — some income from a certain source and if that is a — as irrational if they exclude a red headed families from the — from that group.

Also, as the legislative history shows, while at one time an unemployment compensation was considered the first line of defense.

Certainly was — could no longer be said that that was true after 1961 when Congress specifically recognized that that unemployment compensation could be supplemented.

Potter Stewart:

You have — it is optional with the state, is it not?

Richard S. Kohn:

I’m sorry Your Honor?

Potter Stewart:

The UF program is optional with the state?

Richard S. Kohn:

Yes sir.

Potter Stewart:

Explicitly so?

Richard S. Kohn:

Yes sir.

Potter Stewart:

How many states have —

Richard S. Kohn:

At the present time 25 states Your Honor.

Potter Stewart:

About half, exactly half?

Richard S. Kohn:

That’s correct.

Audio Transcription for Oral Argument – March 24, 1975 in Philbrook v. Glodgett

del

Potter Stewart:

While I’ve interrupted you, you remember yesterday from the other end of the bench there were stirrings about the possibility of this not being appealable, this case not being appealable with this Court?

Richard S. Kohn:

Yes sir.

Potter Stewart:

Have you given that thought?

Richard S. Kohn:

Yes I have Your Honor.

In my judgment, the appeal was properly here on direct appeal from the three-judge court.

Some members of the Court yesterday referred to a prior decision of the Court involving this Supremacy Clause and suggested that issue had been settled many years ago.

I think the Court was referring to the Swift versus Wickham case.

A few weeks after Swift was decide, the Court decided brotherhood of locomotive Engineers versus Chicago Rock Island Pacific Railroad, 382 U.S. at 423 and unlike Swift which dealt solely with a preemption issue, the Brotherhood of Locomotive Engineers case involved an attack based both on a preemption issue and the constitutional ground.

The three-judge court was convened, they did not decided the constitutional ground.

They only decided the preemption issue and appeal was taken direct to this Court from that judgment and the Court held that it had jurisdiction.

And specifically distinguish the Swift case on the grounds that in that case no constitutional issue had been presented.

Potter Stewart:

In the Second Circuit, we have a case I guess it’s going to be heard either today or tomorrow, certain Circuit issue as you know as perhaps of this dichotomize.

Richard S. Kohn:

Yes sir.

Potter Stewart:

And if the District Court decides a case such as this only the statutory ground, preemption ground if you will.

Richard S. Kohn:

Yes sir.

Potter Stewart:

It goes to the Court of Appeals even though jurisdiction, the District Court is purely pendant because of — by reason of the constitutional claim and if the Court decides on unconstitutional grounds, comes directly here we, have a case and I said to be argue tomorrow —

Richard S. Kohn:

Yes.

Potter Stewart:

— involving just that kind of procedure that’s been developed in the Second Circuit and that would suggest I suppose that if these were in the Second Circuit at least, this case has decided by the District Court would’ve been appealable into the Court of Appeals and only to the Court of Appeals.

Richard S. Kohn:

Well, —

Byron R. White:

If it were heard by a single judge?

Richard S. Kohn:

Yes sir.

Byron R. White:

The statutory issue could be heard by a single judge?

Richard S. Kohn:

I don’t think there’s any question that if the three-judge court in this case had dissolved itself and sent this back to be decided by a single judge and the appeal would —

Potter Stewart:

On the fact as of now?

Richard S. Kohn:

Yes sir.

Then the appeal would have — latter, the Court of Appeals.

Potter Stewart:

And that is the Second Circuit premised, is that it?

Richard S. Kohn:

Yes that’s correct, that’s correct.

But, if this Court were to decide that a direct appeal can be taken to this Court from a three-judge court only when the three-judge court has decided the constitutional issue, that would be a radical departure from prior decisions of the Court.

In Hagans v. Lavine, this Court has dictum which states precisely the contrary.

Audio Transcription for Oral Argument – March 24, 1975 in Philbrook v. Glodgett

del

Richard S. Kohn:

In the case of Gonzales versus Automatic Employees Credit Union which I believe was the most recent case to deal with it.

The Court expressly — that had to do with a case where the three-judge court had denied injunctive relief and —

Potter Stewart:

Others in constitutional ground?

Richard S. Kohn:

That’s correct and but the Court expressly said that the decision would not have an impact on cases where the Court grants an injunctive relief and just as a practical matter, it seems to me that the whole policy of the expedited appeal procedure is — if a federal — a lower federal court has decided a case, issued an injunction which arguably paralyzes the federal statute and arguably as against the express intent of Congress, then it’s important that the issue will be resolved immediately.

Whether the Court does that on constitutional grounds or statutory ground, I find a very — I have a difficult time understanding why that should make a difference.

Warren E. Burger:

That should always be dealt with by states the least, could it not?

Richard S. Kohn:

By the state —

Warren E. Burger:

By a state if the action —

Richard S. Kohn:

Well, it could be Your Honor.

Warren E. Burger:

And frequently is, is it not?

Richard S. Kohn:

Well, I’d like —

Warren E. Burger:

Where a single judge does act and there is no direct appeal?

Richard S. Kohn:

That’s correct Your Honor but as in this case where the Court — the District Court applied the ordinary language, well, it seem to absolutely clear that what Congress’ intention was.

Now, under those circumstances what — why should the order of the state pending an appeal through the Circuit and to the Court of Appeals which may take a year and a half.

I might say that in our case, —

Byron R. White:

Is that — is that exactly through a — the sort of — in federal court at all by virtue of the pending jurisdiction —

Richard S. Kohn:

Yes sir.

Byron R. White:

— on that and that that’s not — the Court isn’t obliged to undertake that kind of before hand.

Richard S. Kohn:

There is a discretionary aspect Your Honor, —

Byron R. White:

And so that —

Richard S. Kohn:

— I understand that.

Byron R. White:

— so that maybe in the federal court by sufferance anyway unless you can come under 31331 which you don’t see.

Richard S. Kohn:

Oh, I do Your Honor.

I’ve alleged that —

Byron R. White:

And we don’t — then you don’t even get into this argument.

Richard S. Kohn:

Quite possibly.

We — I’ve briefed these issues Your Honor.

I’ve argued jurisdiction on many alternative grounds.

I think we can come here on 1331.

I should say that just on this point that after the District Court made a decision in this case which essentially provided the family with an option, the — on the agreement of the parties — the state moot for a state as was just suggested.

Audio Transcription for Oral Argument – March 24, 1975 in Philbrook v. Glodgett

del

Richard S. Kohn:

The Court was unwilling to do that and the parties agreed that instead of the option pending the appeal, unemployment benefits would be treated like any other resource.

And since January of 74 in the State of Vermont that the family becomes eligible for an unemployment compensation, he goes over the welfare office and they give him a supplement up to the state need standard.

If the Court had not granted the conditional stay and just said, “No, I’ve made — we’ve made our decision and the option is going to apply now.”

I think the government would argue that that would be a catastrophic result.

And this is the problem when the appeal has to — went its way through the Court of Appeals in a situation like this.

Also, there are great public interest verifications.

There are 25 states involved in every state but Vermont right now, any child whose father is eligible for unemployment compensation is being denied benefits and that’s an issue that should be revolved.

Potter Stewart:

Has this been litigated in any other state, this —

Richard S. Kohn:

There’s only one other case pending that I know of Your Honor in the state of Maryland and my understanding is that it’s been stayed pending a decision on the merits in this Court.

Potter Stewart:

Stayed in the District Court?

Richard S. Kohn:

Yes sir.

Potter Stewart:

No decision yet in the District Court?

Richard S. Kohn:

No decision and I don’t know whether injunctive relief has been granted but I doubt it.

The final question that I’d like to address if I have a moment is a mootness question.

The class action in this case was not certified as a form of class action by the District Court.

And when the Sosna case and the Jacob’s case came out, I wrote a letter to the clerk, I advised him of this and also filed an affidavit by one of our named plaintiffs and her name is Sarrison who is presently receiving unemployment compensation under this so called Glodgett plan.

I believe that that saves the case from mootness and I would also argue that even if it doesn’t and even if Mr. Sarrison should go back to work within the next month or so that this is the type of problem that’s capable of repetition yet evading review.

When a man becomes eligible for unemployment and still drawing it, one of two things will happen, either he will go back to work long before the issue could be resolved in the Supreme Court or he’ll exhaust his benefits and was brought out yesterday with the emergency situation because of the recession the benefit period is 39 weeks with the emergency legislation passed by Congress is up to 52 but it’s highly unlikely that a case could come to this Court in that period of time.

William H. Rehnquist:

For Sosna, it gives you remedy for that in a class action.

Richard S. Kohn:

Yes Your Honor that’s true but it’s my feeling that the named plaintiff has a right to vindicate his claims and that I’m not sure that simply because he is permitted to bring a class action that would affect other people that that would undercut the exceptions for mootness doctrine.

William H. Rehnquist:

Well, I think we said in Sosna that if it wasn’t moot as to the name plaintiff there is no problem but if it’s moot as to the named plaintiff.

Richard S. Kohn:

Well, Sosna only dealt with the class action situation Your Honor and it didn’t get into the exception to the mootness doctrine that this Court enunciated in Southern Pacific versus ICC and more of the Oglebay where you were dealing with the specific name plaintiff.

William H. Rehnquist:

And there was a possibility of repetition as to him?

Richard S. Kohn:

Yes sir and we would argue that the families that we represent are locked in a cycle of poverty.

It’s highly likely that they will be often on this program for the foreseeable future particularly with the recession.

And we have some figures which are at this time are not a part of the record of the court but I’ll be glad to file it showing the history of each of these families, these are figures that were compiled by the Department Social Welfare in Vermont and you will see that in fact there were periods of unemployment, they would go off unemployment, go to work for several months and then they would be back on again.

And it certainly the situation of Mr. Sarrison who was unemployed from January 74 until June of 74, worked from June of 74 until November of 74 and since that time has been unemployed and is receiving assistance.

Potter Stewart:

What’s the so called Glodgett plan?

Richard S. Kohn:

The Glodgett plan is a plan that was formulated in Vermont Your Honor after the District Court’s decision.

Under the Glodgett plan, instead of the options taking effect, a family that’s eligible for unemployment compensation is permitted to accept those benefits and then go over to the welfare department where he gets a supplement to bring him up to the state need standard.

Audio Transcription for Oral Argument – March 24, 1975 in Philbrook v. Glodgett

del

Potter Stewart:

With the total reduction?

Richard S. Kohn:

That’s correct Your Honor.

Potter Stewart:

And that’s just an interim plan pending the final decision of this litigation, —

Richard S. Kohn:

That’s correct.

Potter Stewart:

— is that it?

Richard S. Kohn:

And the effect of it is to do exactly what would’ve been done had the Court resolved this case on constitutional grounds.

All they’re doing is treating unemployment compensation as a resource, the same way they would work on this for veteran’s benefits or any thing else.

I think it’s all I have.

Thank you.

Warren E. Burger:

Thank you Mr. Kohn.

Mr. Patton, do you have anything further?

You have three minutes left.

William L. Patton, Jr.:

Mr. Chief Justice and may it please the Court.

And the only point I want to respond to is the question of whether the appeal lies to this Court of the Court of Appeals.

At the time we filed the jurisdictional statement, we relied on statement in Hagans agains Lavine which properly characterizes dictum but which we believe the reflected the laws as it then stood.

If the Court and I think it’s obvious does wish to reconsider those cases, we’d like permission to file a supplemental brief and we request 30 days in which to file it because it presents a number of questions of their important to governments litigating policy that I’m not in the position to answer it this time.

Potter Stewart:

Would your brief be in support of the position that this case is appealable direct in this Court or don’t you know?

William L. Patton, Jr.:

I’m not sure Mr. Justice Stewart because there’s — actually as a practical matter; we would have preferred to go to the Court of Appeals in this case because we think we could’ve resolved the statutory problem there.

And as the general matter, the government doesn’t have a preference as to which court to go to as long as it knows where it’s going to go.

But we do think there are some things that we are to consider for one thing the rule to be the same as to state and federal defendants.

Otherwise, we’ll end up in a situation where when joined in the same action the state defendant go to this Court and federal defendants go to the Court of Appeals.

And the questions about expedited review where an injunction is been granted and those are the kinds of things we’d like to consider and submit in our supplemental.

Warren E. Burger:

If you really need 30 days for that counsel if you can submit it less than printed form — fully printed form.

William L. Patton, Jr.:

I wouldn’t think so Mr. Chief Justice.

We want to confer with the states and we also want to talk to some federal agencies to get their view on the question.

I would think — I think 15 days would be sufficient if we can dispense for printing.

Warren E. Burger:

Very well, we’ll expect it in 15 days and if the counsel — if Mr. Kohn wishes to respond he may do so.

Harry A. Blackmun:

Mr. Patton, this doesn’t come as a surprise to you does it we postpone jurisdiction in your case.

William L. Patton, Jr.:

It came as a surprise to me yesterday afternoon Mr. Justice Blackmun because —

Harry A. Blackmun:

Well, what is the point?

Audio Transcription for Oral Argument – March 24, 1975 in Philbrook v. Glodgett

del

William L. Patton, Jr.:

We had anticipated that jurisdiction was postponed on dependent parties doctrine and we didn’t think that this question was for shattered in Gonzales though we now recognized the issue and we respond to it.

Potter Stewart:

We have MTM this morning.

William L. Patton, Jr.:

Yes sir and —

Potter Stewart:

Add to a little fuel to the fire.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.