Quinn v. Millsap

PETITIONER:Quinn
RESPONDENT:Millsap
LOCATION:Reproductive Health Services

DOCKET NO.: 88-1048
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: Supreme Court of Missouri

CITATION: 491 US 95 (1989)
ARGUED: Apr 25, 1989
DECIDED: Jun 15, 1989

ADVOCATES:
Kevin M. O’Keefe – on behalf of Appellants
Simon B. Buckner – on behalf of Appellees

Facts of the case

Question

Audio Transcription for Oral Argument – April 25, 1989 in Quinn v. Millsap

William H. Rehnquist:

We’ll hear argument next in No. 88-1048, Robert J. Quinn v. Wayne L. Millsap.

Mr. O’Keefe.

Kevin M. O’Keefe:

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

This case is before the Court on appeal from a final judgment of the Supreme Court of the State of Missouri.

Appellants, as certified by the courts below, are a class comprising all registered voters of the State of Missouri who do not also own real property.

At issue is Section 30 of Article VI of the Constitution of the State of Missouri, a provision authorizing the creation and operation of a Board of Freeholders, which is an ad hoc, tax-supported, public governmental body authorized the exclusive authority to prepare and submit to the electorate of the St. Louis Metropolitan Area a plan for local government reorganization including the partial or complete government of all or any part of the City of St. Louis and St. Louis County.

The case was originally submitted on cross-motions for summary judgment and stipulated facts.

The challenge to the Section 30, both on its face and as applied, in the instance of the creation of the present Board of Freeholders in this area, was overruled by the Missouri Supreme Court on the grounds that the equal protection guarantees of the Fourteenth Amendment are irrelevant to the discrimination suffered by the appellant class because, in the court’s words, the Board of Freeholders fails to exercise “general governmental power”.

The question thus presented in the Court this afternoon is whether the State of Missouri may, by the operation of its State Constitution and the activities of appointing authorities operating under that provision, extend to one class of citizens… to wit, property owners, the owners of real property… the opportunity for public service and participation in a critical aspect of state and local governmental operation and, at the same time, withhold an equivalent opportunity for service and participation to the members of the appellant class solely because the appellants do not own an interest in real property.

Sandra Day O’Connor:

Mr. O’Keefe, how far does your theory go?

The Board does deal with things like recommendations on property taxes, I gather, and formation of sewer districts, and property boundaries of one kind or another.

Do you suppose it would be possible, because property owners are particularly affected, to have a Board in which some of the members have to be property owners?

Kevin M. O’Keefe:

Your Honor, the circumstances, of course, are not that there is a requirement for a representative array of Board members.

Sandra Day O’Connor:

I understand that.

That’s not my question.

Kevin M. O’Keefe:

I do not believe that property ownership would be a disqualification for service, as is the lack of property ownership.

Sandra Day O’Connor:

Well, I’m asking whether it would be permissible under the Constitution, in your view, for a state to set it up with certain members having to be property owners… maybe so many civil engineers, and so forth and so on.

Can the state do that?

Kevin M. O’Keefe:

Justice O’Connor, I don’t believe that the ownership of property bears any rational relationship to the authority that a Board of Freeholders enjoys.

As such, either its absence or its presence,–

Sandra Day O’Connor:

xxx their duties impact heavily on property ownership?

Kevin M. O’Keefe:

–Well, there is a reference in Section 30(b) of the Missouri Constitution to the levying of the property tax.

That has been interpreted by the State Constitution, however, as to… that it involves the levy of both personal and real property taxes.

There are no exclusively real property issues.

The boundary lines of governmental entities are certainly not real property issues.

The creation of a sewer district serves renters and property-owners alike, and similar proposals within the current plan, particularly the reduction of the property tax and the imposition of an earnings tax in lieu of it, are certainly not… do not demonstrate that the absence of ownership of property should disqualify an individual.

William H. Rehnquist:

Mr. O’Keefe, this Board, I take it, doesn’t actually adopt anything itself, does it?

Kevin M. O’Keefe:

It does adopt a plan.

William H. Rehnquist:

But it… but the plan it adopts doesn’t have the force of law until it’s ratified by the electors?

Kevin M. O’Keefe:

That is correct.

Kevin M. O’Keefe:

If it is ratified… adopted by the electorate in the locality… that is, the City and County of St. Louis… it becomes the organic law of the territory and supersedes all conflicting state statues.

William H. Rehnquist:

What… what case of ours comes closest, do you think, to supporting the proposition you’re maintaining here?

Kevin M. O’Keefe:

Your Honor, I believe Turner v. Fouche is the most clear statement of the law that the equal protection guarantees of the Fourteenth Amendment protect the right of each citizen to an equal opportunity for service.

In… when the state extends to one segment of the population an opportunity for service, that it is a violation of the equal protection guarantees to withhold a similar opportunity to another segment of the–

William H. Rehnquist:

So, you… you don’t base your argument then on our… the Kramer v. Union Free School District line of cases where we say that you can’t discriminate among… property qualifications for voters?

Kevin M. O’Keefe:

–To the contrary, your Honor.

I believe that the voting rights questions in Kramer, and a variety of other cases including reapportionment cases, candidate ballot questions such as Bullock v. Carter and Lubin v. Panish, are all highly relevant to the consideration of this provision.

William H. Rehnquist:

Well, but there are two quite different lines of reasoning I would have thought.

One is what you said earlier, the right to serve in a governmental capacity.

And the other is the right to vote on matters that have a good deal of concern to you.

Kevin M. O’Keefe:

Your Honor, first of all, the subsequent opportunity to vote does not overcome the discrimination which occurs when the Board is first put into place.

That is the act of discrimination.

William H. Rehnquist:

Well, it may not overcome the discrimination insofar as the opportunity to serve is concerned, but it very likely would overcome any discrimination insofar as the adoption of the plan is concerned.

If all the voters have a right to vote, it’s hard to see they are discriminated against as voters.

Kevin M. O’Keefe:

Well, Mr. Chief Justice, I believe that the reasoning articulated by this Court in Bullock and Lubin which concerned candidate restrictions, qualifications restricting candidates seeking an access to the ballot in a primary election, recognized that when an identifiable segment of the voting public has their perspective artificially barred from the ballot, that they suffer a diminution of the right of franchise and suffer an abridgement of their right to vote.

The concomitant effect of an exclusion of a segment of society from one level of participation has an impact on the exercise of the right to vote, and that it is this exercise which in fact elevates the concern in the constitutional failure of Section 30, that those who do not own real property are allowed to participate only at the back end of the process.

They may be naysayers, they may be able to vote down a plan.

And if they do, and if they, along with the rest of society, still seek to improve the operations of their government, they can only do so if another Board of Freeholders would propose a plan.

And if that plan is not satisfactory, they may attempt to participate in turning it down.

But they have no opportunity to–

What if–

Kevin M. O’Keefe:

–see their public policy perspective–

Antonin Scalia:

–What if the legislature, the state legislature… or, for that matter, the governor, had authority to propose the plan.

And let’s say the legislature were, you know, 70 percent Democratic–

Kevin M. O’Keefe:

–Well–

Antonin Scalia:

–and it proposes the plan and the people either take it or leave it.

Now, could a voter come in and say, well, you know, I’m a Republican, it’s a Democratic-dominated legislature, I haven’t had a good shot at this?

Kevin M. O’Keefe:

–Both Republicans and Democrats have an equal opportunity to participate in the state legislature.

The appellant class does not.

The appellant class is barred from the opportunity to participate in the critical decision-making process which precedes the submission of the issue on the ballot.

Antonin Scalia:

You have two challenges here, Mr. O’Keefe.

One facial and one as applied.

Kevin M. O’Keefe:

Yes, your Honor.

Antonin Scalia:

Now, why is it bad for the appointing officials to make as one of the qualifications that they want for their appointees that the appointee own real property?

Kevin M. O’Keefe:

Well, your Honor, the appointing authorities, the Respondents, mayor, governor and county executive, did not in fact of their own volition apply a property ownership requirement.

Counsel for the city and the county advised the executive authorities that property ownership was a requirement.

Antonin Scalia:

Well, that gets you back to your facial challenge then.

I mean, if you’re saying it’s a requirement of the law or it’s not a requirement of the law but it’s how the law has been applied in this case… you’re saying you have nothing but a facial challenge.

Even your “as applied” challenge hinges on the fact that the law requires this.

Kevin M. O’Keefe:

Well, because the law required it, in fact, a nominee such as Father Reiner, the President Emeritus of St. Louis University, was withdrawn from service by application of the principle.

Antonin Scalia:

But you’re saying it just boils down to your facial challenge, because the law requires it.

And if the law doesn’t require it, it’s okay that each of the appointing officials should voluntarily… or, perhaps, even on the basis of bad advice from his counsel, have selected a freeholder.

Is there anything wrong with that?

Kevin M. O’Keefe:

Your Honor, if… if the appointing authorities… which, of course, are not the facts situations… but, if the appointing authorities under some circumstance were to believe that among other factors it was advantageous that some of the appointees also own property, that may or may not, given their perspective, be a rational basis for them to use as a factor.

But, when, as here, they cannot utilize that, that factor is used as a bar to one segment for service–

Antonin Scalia:

But that’s your–

Kevin M. O’Keefe:

–not as a–

Antonin Scalia:

–your facial challenge.

When you say they cannot, that… that requires that we find that that’s what the Constitution of Missouri requires.

Kevin M. O’Keefe:

–Well, your Honor–

Antonin Scalia:

But your “as applied” challenge, I thought, did not hinge on our determining what the Constitution of Missouri requires.

Kevin M. O’Keefe:

–You are correct, Justice Scalia.

What the “as applied” argument is, is that if the appointing authorities got bad advice, as you indicated… if they made a mistake as to what the law required, nonetheless, they did apply the standard–

Antonin Scalia:

Right.

Kevin M. O’Keefe:

–that all nominees were measured against that criteria–

Antonin Scalia:

And that’s no good?

Kevin M. O’Keefe:

–Yes, sir.

Antonin Scalia:

Well, I… you… what if the governor and all the other appointing officials happen to be Republicans and they say, as frequently happens in this town when appointment are made, “I’m going to appoint Republicans”.

Is that all right?

Kevin M. O’Keefe:

Your Honor, I don’t believe that–

Antonin Scalia:

You have a whole Board of Freeholders with nothing but Republicans on it.

Is there anything wrong with that?

Kevin M. O’Keefe:

–Well, that would violate the facial terms of Section 30 which require bipartisan representation.

Yeah, I’m–

Kevin M. O’Keefe:

Aside from–

Antonin Scalia:

–This is a hypothetical, Mr. O’Keefe.

Kevin M. O’Keefe:

–Aside from the minor detail, the exercise of discretion based on political affiliation I believe this Court has endorsed in policy-making positions.

I don’t believe that this Board would be any… would be outside the scope of policy-making bodies.

Antonin Scalia:

Would not be outside the scope?

Kevin M. O’Keefe:

Would not be.

Antonin Scalia:

It’s a policy-making body?

Kevin M. O’Keefe:

I believe it is.

And, as such, that would be one criteria which may, with others, reasonably be applied.

Antonin Scalia:

I’m saying with others.

That was criterion one, and then we’ll look at other ones.

But, number one, you have to be a Republican.

And, don’t bother me, I’ll look at your other qualifications when… that’s done sometimes, you know.

Kevin M. O’Keefe:

I believe it is done.

I think there may be a significant problem with proof to establish that fact.

But I don’t believe that given the nature of this body… that it is autonomous and independent and has a significant broad-based impact on policy… that it would necessarily fall outside the purview where this Court has previously authorized political considerations at policy level.

Harry A. Blackmun:

Mr. O’Keefe, how long does this Board last?

It’s… It’s not a self-perpetuating Board, certainly, is it?

Kevin M. O’Keefe:

It is not self-perpetuating.

It is authorized to be created for a period of one year.

It is an ad hoc body, tax-supported, and operates only until it files a plan, which is a maximum time period of one year.

Harry A. Blackmun:

It’s pretty hard to get a plan out in one year, isn’t it?

Kevin M. O’Keefe:

They… they have achieved it.

Harry A. Blackmun:

It’s been going on for some time, and the county and the city like to stay apart.

Kevin M. O’Keefe:

In fact, the history is that the city and county were so-called divorced in 1876, and this provision was entered in the Missouri Constitution by an initiative in 1924 primarily for the purpose of allowing for that remarriage, if you will, between the City and the County of St. Louis.

Harry A. Blackmun:

Of course, the very name of it implies land ownership.

Harry A. Blackmun:

At least, the term freeholder has always been that way for me.

Kevin M. O’Keefe:

Well, Your Honor, I believe that would be consistent with about 700 years of common law, as to the meaning of the term freeholder, which has, to my knowledge, no appellate decision has found it to be independent of the ownership interest in real property.

In fact, the Missouri Supreme Court also has defined the constitutional use of the word freeholder in the case of Shivley v. Langford, cited in our reply brief, to specifically require the ownership of a fee-interest in real property.

Lands, tenements, or–

Anthony M. Kennedy:

xxx for this requirement?

Kevin M. O’Keefe:

–It is.

Yes.

Kevin M. O’Keefe:

The definition of the word freeholder, Your Honor?

Byron R. White:

Well, the… the… the provision providing for this Board doesn’t say property ownership, does it?

It just–

Kevin M. O’Keefe:

No.

Byron R. White:

–says freeholder?

Kevin M. O’Keefe:

It says freeholder, Your Honor.

Anthony M. Kennedy:

Do you seek to invalidate the plan that was proposed by the Board, or just a declaratory judgment that all voters are entitled to membership on the Board?

Or both?

Kevin M. O’Keefe:

I would seek both, Your Honor.

That–

Anthony M. Kennedy:

What… what was sought in the complaint below?

Kevin M. O’Keefe:

–What was sought in the complaint below is a declaration of invalidity and injunctive relief against its enforcement, including as to the present Board.

Anthony M. Kennedy:

And who… who is the Plaintiff?

Kevin M. O’Keefe:

The Plaintiff in this case is the State of Missouri, the appointing authorities, and the members of the Board of Freeholders.

Anthony M. Kennedy:

You… you seek injunction against enforcement of what?

Kevin M. O’Keefe:

Section 30’s provisions.

Anthony M. Kennedy:

Well, does that involve an abrogation of the plan that was proposed?

Kevin M. O’Keefe:

Yes, Your Honor.

We sought the… we sought relief before a plan was proposed and sought injunction against the further operations of the Board.

And that would include the product of an illegally-constituted body in this instance.

William H. Rehnquist:

Has there… has there been a vote on the plan?

Kevin M. O’Keefe:

There has not been a vote on the plan.

It was scheduled for June 20th of this year.

Kevin M. O’Keefe:

A lower court in St. Louis County has delayed the election, pending the resolution of this appeal.

Anthony M. Kennedy:

In… In the state court, did you rely on the Lubin and the Bullock cases in the… in your argument that the right to vote is burdened?

Kevin M. O’Keefe:

In the pleadings filed with the state court in our cross-petition for relief, we pointed out that the exclusion of non-property owners from participation in the Board can result in a biased plan and infringe on the rights of voters.

That’s located in the Joint Appendix, if I can find it.

The–

Anthony M. Kennedy:

Is that in your argument before the Missouri Supreme Court?

Kevin M. O’Keefe:

–There was no specific discussion of the voter impact–

Or–

Kevin M. O’Keefe:

–issue in the Missouri Supreme Court.

Antonin Scalia:

–Mr. O’Keefe, your opponent refers to the Board of Freeholders in the New Jersey counties, which he says there is no evidence that any of the persons elected to those posts have to be freeholders.

And I assume you could call something a Board of Freeholders without requiring that they own land, if you want to.

Do we have a clear holding here by Missouri courts that because the name of this is Board of Freeholders you cannot be elected to it unless you… unless you are a freeholder?

Kevin M. O’Keefe:

We have, Your Honor.

We have, first of all, the definition of the term as used in the Missouri Constitution, from which there has been no withdrawal or retreat by the Missouri Supreme Court.

We have, secondly, a Missouri Supreme Court decision which discusses only issues of federal constitutional law.

Under the rule of necessity, it did not determine that this matter could be resolved by any ambiguity or uncertainty in state law issues.

Antonin Scalia:

Well, I can see that freeholders means what everybody thinks freeholders means.

Kevin M. O’Keefe:

Yes, sir.

Antonin Scalia:

But there’s… there’s no provision in the Missouri Constitution that says the members of the Board of Freeholders shall be freeholders.

It just calls them the Board of Freeholders.

Kevin M. O’Keefe:

It calls them the Board of–

Antonin Scalia:

Now, couldn’t it be possible for the Missouri Supreme Court to say, yeah, they’re called that, and maybe once upon a time they were that, but there’s no constitutional requirement that they all own real property.

Couldn’t it… wouldn’t that be within the realm of the of the power of the Missouri Supreme Court?

Kevin M. O’Keefe:

–Well, of course, the Missouri Supreme Court is bound to interpret its Constitution and construe it consistent with the past opinions and principles–

Sure.

Kevin M. O’Keefe:

–of construction.

The use of the word freeholder is also found in Article VI, Section 18(g) concerning county Boards of Freeholders to prepare local charters for counties, including St. Louis County, and in Section 32(b) of Article VI concerning a freeholder board for the City of St. Louis to prepare a charter.

And in those uses, the number of members precedes the use of the term freeholders so that it reads,

“there shall be a board consisting of 14 freeholders. “

and thirteen freeholders.

Right.

Kevin M. O’Keefe:

In this instance, by–

There isn’t.

Kevin M. O’Keefe:

–Pardon me?

Antonin Scalia:

In this instance there isn’t.

Kevin M. O’Keefe:

In this instance, by reason of the fact that the number is stated after the word as opposed to before it, I don’t think amounts to a constitutional distinction between the two perspectives.

In addition, of course, the language utilizes… the section refers to the fact that the freeholders of the city and county will establish compensation rate for the freeholder from… the 19th freeholder… and that the election is to be set on the date set by the “freeholders”.

So, the section uses the term “members” in some instances, and “freeholders” in others.

Antonin Scalia:

See, I’m… I’m a little reluctant to set aside a… a… a proposal in Missouri on the basis of a meaning of the Missouri Constitution unless it’s unavoidable that the Constitution requires an interpretation that makes this thing invalid.

And… do you–

Kevin M. O’Keefe:

Well, Justice Scalia, I could… I could suggest to you that, as was mentioned in the prior argument, the trial court in this case took a position such as that you are discussing here, that the name is titular only and not a requirement for office.

–Uh-huh.

Kevin M. O’Keefe:

That opinion went to the Missouri Supreme Court.

As is in the case in other opinions of law, by trial courts, particularly those on stipulated facts, the Missouri Supreme Court gave no deference to that opinion and did not articulate it, preserve it, reflect it in any manner.

Antonin Scalia:

They didn’t say no, but they didn’t say yes, either.

There… it’s hard to point to a line in their opinion where they say, of course, the meaning of our State Constitution is that these members must be freeholders.

Kevin M. O’Keefe:

I think there is such a line, Your Honor.

Antonin Scalia:

They say that… well, all right.

Go on.

I know the–

Kevin M. O’Keefe:

Membership on the Board is restricted to owners of real property.

–Was restricted.

Kevin M. O’Keefe:

Was restricted to–

Antonin Scalia:

Was restricted is what they said.

Kevin M. O’Keefe:

–Yes, sir.

Antonin Scalia:

And that could be just a description of… not the facial challenge, but of the “as applied” challenge.

That maybe as a matter of fact the governor and all the people who… who selected people did restrict it to freeholders.

But that would be an “as applied” challenge.

And then we get back to my Republican question.

Kevin M. O’Keefe:

Well, Your Honor, they did not separate the “as applied” and facial challenges or concerns about the section in their decision.

Kevin M. O’Keefe:

The Missouri Supreme Court also, I think it is fair to recognize, addressed this case because there was an abstention order by the Eighth Circuit Court of Appeals.

So, Missouri was fully aware of the fact, the Missouri Supreme Court, as referenced in its opinion, that it was being given an opportunity to address… identify, address, and resolve any state law issues which might obviate the challenge, and did not do so.

Antonin Scalia:

They were, at least, making our job harder.

I’ve got to agree with you there.

[Laughter]

Kevin M. O’Keefe:

It is the position of the appellants that in essence the rights which the appellant class seeks to preserve are the identical rights recognized and articulated by this Court in the Turner decision, that it is the right to equal treatment, the equal opportunity for service which the Turner decision so jealously guarded.

The right to be free, in the Turner language, from the burden of an invidiously discriminatory disqualification by which one segment of society is offered either a privilege, a right, or an opportunity by the state.

And, for irrational and illogical reasons, the class consisting of the appellants was excluded from an equal opportunity for that right.

Sandra Day O’Connor:

Mr. O’Keefe, do we apply just a rationality standard?

Kevin M. O’Keefe:

Your Honor, I believe that even under the minimum rational basis test, as articulated in Turner, that the freeholder qualification of Section 30 falls.

Sandra Day O’Connor:

You think Turner was a typical application of a rationality test?

Or, did it look like something else?

Kevin M. O’Keefe:

I believe it appeared to be a logically consistent and appropriate application of a rational basis test.

I believe, however that there are… there is one set of factors which make the appellant circumstances in this case even more compelling than the issues in Turner.

And that is, as was discussed previously.

The concomitant impact which the exclusion of the appellant class from service on the Board has on that class’ rights as voters.

And when… as in the cases of Bullock v. Carter and Lubin v. Panish… candidates seeking nearly access to the ballot for a primary election, never to exercise any “general governmental power” or any power whatsoever, other than the opportunity to stand again for election, when this Court has considered restrictions which impede the opportunity of citizens to seek access to the ballot, you have found… and I think quite appropriately… that no such standard can survive constitutional scrutiny absent it being reasonably necessary, and, therefore, surviving a heightened level of constitutional scrutiny.

There is no difference between the opportunity for service on the Board of Freeholders so that you can dictate access to the ballot for the proposition, and the opportunity for service… opportunity to stand for election in the primary election.

I think that that factor also would indicate that the standard to be applied should be heightened.

But that under either standard, that the constitutional equal protection deprivations of Section 30 must be declared invalid.

Unless there are additional questions, I’d like to reserve the balance of my time.

William H. Rehnquist:

Thank you, Mr. O’Keefe.

Mr. Buckner.

Simon B. Buckner:

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

The state, perhaps not surprisingly, has a slightly different perspective on this case than that enunciated by the appellants.

What’s important to remember is that 65 years ago the people of the state, that is, the whole State of Missouri, decided that there might come a time when the people of St. Louis City and County would want to reorganize the metropolitan government.

To that end, the people of the state invoked the state initiative process.

They passed petitions throughout the state, gathered signatures from every congressional district in the state, and voted to adopt a process.

This was the only thing on the ballot… or, pardon me… it wasn’t like adopting a constitution.

It was one issue and the people of the state voted to do this.

Simon B. Buckner:

They voted to adopt a process whereby the Mayor of St. Louis City, the County Executive of St. Louis County, and the Governor, each appointed a number of people to a board, a committee, whatever.

In this case it was called the Board of Freeholders, and this group of people have exactly one function, and that is to propose a plan for the reorganization of Metropolitan St. Louis government.

Antonin Scalia:

When they did that, they didn’t know that the Constitution prohibited your having a… a governmental unit like this composed only of property owners.

Because we hadn’t told them that yet, had we?

Simon B. Buckner:

If the reference is to Turner v. Fouche, you’re right.

That case is later than that.

On the other hand, it is my position… it is the state’s position, as you suggested earlier… that it is not clear that the Missouri Constitution limits membership on this Board to owners of real property.

The appeal is essentially based on one sentence that you’ve heard.

We recognize membership on the Board of Freeholders was restricted–

Thurgood Marshall:

Is there anything in the lore… l-o-r-e… of Missouri that says that freeholders do not mean holders of property?

Simon B. Buckner:

–There is nothing in the Missouri Constitution that speaks to that point.

There is, I believe, a statute that refers to a freeholder as one who owns a certain number of chickens.

But we have a number of cases in Missouri, and in particular, the ones in this line of cases that form the basis of the appeal today.

And, in addition, there was another trial court opinion which, of course, was not–

Thurgood Marshall:

Which says that freeholders don’t mean freeholders?

Simon B. Buckner:

–That says that when the word freeholder is used in this context, it should be understood in a public law context, as opposed to a property law context.

And in the public law context, the word freeholder does not impose any limitation of the sort urged by the appellants today.

What does it mean?

Simon B. Buckner:

In this case the trial court held that it was… it imposed no limitation over and above the word “elector”.

Or it doesn’t mean anything?

Simon B. Buckner:

That is what the trial court–

It’s just a–

Simon B. Buckner:

–said.

–a wasted word.

Simon B. Buckner:

Well, it is a wasted word in the sense that it is a word that is being used to name the Board.

In a property law context, it means owner of real property.

In a public law context, in this particular case, it is just a descriptive word that is used to name the Board.

Then what does it mean to the people in Missouri?

Or anyplace else?

Simon B. Buckner:

To the lawyers who study real property law, it means–

Well, now–

Simon B. Buckner:

–owner of real property.

–lawyers will make any word mean anything they want to make.

[Laughter]

I’m talking about common people.

Simon B. Buckner:

Well, I would draw an analogy to the use of the word “judge”, which is used in all sorts of varieties and means different things in different contexts.

Here today, we would say that the judge… the judge refers to somebody who tries cases or hears appeals.

In another context, as I pointed out in the brief, judge, referring to a member of the County Court of Jackson County… we referred to Harry Truman as the presiding judge of that county, but Harry Truman wasn’t a lawyer.

He didn’t exercise any judicial power.

It was merely the name we applied to a member of this group.

Well, what does freeholder apply to?

Simon B. Buckner:

In this case, the word freeholder is not a word of limitation that applies to the–

Does it mean–

Simon B. Buckner:

–members of this Board.

–a person?

Does it mean a person?

I mean, could it be a dog or a cat?

[Laughter]

Simon B. Buckner:

No, Your Honor.

In this case Section 30(a) refers to members of a board and talks about appointees.

Section 3O(b) speaks of freeholders.

That is, people who are members of this Board.

Mr. Buckner, did you make this argument to the Supreme Court?

Simon B. Buckner:

I personally did not make the argument.

Was the argument made on behalf–

Simon B. Buckner:

That the word–

–of the state to the board?

Simon B. Buckner:

–That the word freeholder did not act as a limitation–

Right.

Simon B. Buckner:

–to membership?

Simon B. Buckner:

Yes, Your Honor.

And yet the court’s opinion appears, at least to me, to assume that it means property owner.

Simon B. Buckner:

There are a variety–

The court simply decided it on that assumption, the Supreme Court did.

Simon B. Buckner:

–Well–

The district court didn’t.

Simon B. Buckner:

–I think–

But when it got to the Supreme Court, one has the impression that that court assumed it meant there is a property ownership requirement.

And it decided the federal issue on that assumption.

Simon B. Buckner:

–As was pointed out a short while ago, there were two arguments brought to the trial court and to the Supreme Court.

Number one, is this provision unconstitutional on its face?

Number two, is it unconstitutional as applied?

I would submit that on its face we have the statement at the outset of the Supreme Court opinion that says in so many words, Section 30 required both the Mayor of St. Louis and the County Supervisor of St. Louis County to appoint nine electors to the Board.

In addition, the Governor of Missouri was required to appoint one elector to the Board.

That appears in the Jurisdictional Statement at Appendix page two.

The court needed to go on and discuss the “as applied” problem.

We needed to do something.

And the court went on and it felt that the cases discussing–

Wait a minute.

You think they decided the question that a freeholder does not have to be a land owner by using the word elector instead of freeholder, and that they made that significant constitutional decision in the statement of facts?

Simon B. Buckner:

–I am submitting that we have looked at the text of the Constitution which says that the Board shall consist of 19 members, as you noted, without reference to the word freeholder or to ownership of real property.

The trial court looked at that and said specifically… and this is at page A-17 of the Jurisdictional statement… it quoted the constitutional language of the Missouri Constitution and said the only qualification for members is that they be electors.

The Missouri Supreme Court went on and found, and said, that Section 30 required these people to be electors and then, in what I will admit is a highly ambiguous statement at the end, said,

“We recognize membership on the Board of Freeholders was restricted to owners of…. “

Well, why then–

Simon B. Buckner:

“# real property”.

–would they need to have… go any further?

If they didn’t mean that, why would they then go on and give a reason, say this doesn’t raise an equal protection problem because this is not a governmental body?

Simon B. Buckner:

We–

That doesn’t make… they didn’t need to say that unless they… they said that against the background of property ownership, it seems to me.

Simon B. Buckner:

–We have the fact that both sides have stipulated to, that all the members of the Board were in fact owners of real property.

Thus, we have a problem with the Constitution as applied, if it were, and we need to come up with some sort of reason.

And the court came up with an analysis that–

But you… so… on the “as applied” basis, you agree that… that… that as applied they… somebody thinks the property ownership was necessary?

Simon B. Buckner:

–I know that the counsel for both St. Louis City and St. Louis County so advised the appointing authorities.

And so must you defend this “as applied” case here?

Simon B. Buckner:

I think not.

Why not?

Simon B. Buckner:

Number one, because, as I have suggested, we’ve moved from state to federal court now, and these particular appellants were not discriminated against in any way.

Because we have stipulated that it would have to be the County Executive to appoint them, and the County Executive made his determination, we have stipulated, without considering whether these people owned real property.

So, these people would not have been injured on an “as applied” basis.

In addition–

But the County Executive received legal advise that you didn’t have to be a freeholder.

But, what?

The Mayor of St. Louis received contrary advise?

Simon B. Buckner:

–No, Your Honor.

In each case, the executive came up with a list of nine names.

After coming up with the list of names, each of these executives received legal advice.

In the case of the county, the legal advice was these people need to be owners of real property.

They looked at the list of names.

All these people, as it happened, did own real property.

So, there was no change made.

In St. Louis City, the Mayor came up with a list of nine people.

He received the same legal advice and went down the list and determined that one of the persons did not own real property, and he was excluded from the… another person was appointed in his place.

And that person was… the person who was excluded in St. Louis City is not a party to this case?

Simon B. Buckner:

That is correct.

Well, then, if that’s true, why is the “as applied” challenge really any different from the facial challenge?

Because, as it’s applied, even if it doesn’t mean that, apparently all the lawyers who advised the governmental officials in your community tell them that this is what it means.

And maybe they’re wrong, but then they all act on incorrect advice.

So, the application of this ambiguous provision is exactly the same as if it meant what I thought it meant when I read it.

Simon B. Buckner:

As Mr…. as Brother O’Keefe pointed out in his brief, the law of Missouri is determined not by the appointing officials, but by the court, the Missouri Supreme Court.

No.

But it’s applied by people who listen to their lawyers.

And their lawyers tell them that… erroneously perhaps… that it requires freeholders.

So, as applied in this… it just doesn’t mean they happened to appoint them.

They appointed them because they were told by the people from whom they get legal advice that this is what it means.

Simon B. Buckner:

I have several responses to the problem “as applied”.

As I observed in my brief, my reading of this tends to lead me to the conclusion that “as applied” really wasn’t raised in that we have the statement in–

Well, if it wasn’t raised, your explanation for the Missouri Supreme Court’s opinion goes up in smoke.

Simon B. Buckner:

–It was not raised when brought to this Court.

Raised below, but not in this Court.

But certainly the Missouri Supreme Court doesn’t differentiate between two kinds of challenges.

Simon B. Buckner:

No, it does not.

They don’t even mention the “as applied”.

Simon B. Buckner:

I… I agree that the Missouri Supreme Court–

So your explanation of that opinion rests on the assumption they carefully categorized these two different legal theories and disposed of one of them in the statement of facts, and then disposed of the other one by… by making this governmental powers argument.

Simon B. Buckner:

–As Justice Scalia observed, the court could have made my job easier too.

[Laughter]

And I also would point out that this… the federal district judge who read this just thought that this interpretation was really off-the-wall.

He thought it was… there was absolutely no merit to it.

Simon B. Buckner:

That’s correct.

That is–

And that’s the one unambiguous description of what… what this provision means by a judge here.

Simon B. Buckner:

–But we have a… in this case, a federal judge interpreting the–

Right.

Simon B. Buckner:

–Missouri Constitution.

And, fortunately, in my case–

Presumably it was a Missouri lawyer.

Simon B. Buckner:

–Yes, he is.

Well, what should we do?

Just give it the best reading we can and interpret that opinion as we best understand it?

Simon B. Buckner:

I think not.

That is certainly–

Are we permitted to do that?

Simon B. Buckner:

–That is certainly one thing that you may do, is look at that question.

As I suggested in the brief, this is really a legislative process and this Court does not have the… well, this Court may review two things in connection with the legislative processes.

First, the result.

What comes out.

When a plan is adopted and… voted on by the people and adopted by the people, this Court may review the way that that plan meshes with the Federal Constitution.

That’s not a controversial issue of law.

You’re not suggesting that… you’re not suggesting that a referendum cures every equal protection violation just because the people want to violate somebody’s rights?

Simon B. Buckner:

Well, as Justice Stewart suggested in the Town of Lockport decision, there are different considerations that apply to legislative acts… or, pardon me… one class of votes and referenda.

In particular, I think that what saves this process is that we have a vote by the people of the State of Missouri to establish this process, and we have a vote of the affected people at the back end.

It’s not as was suggested a while ago, we have the people backing in and approving or disapproving.

We have the approval of the people at the outset as well.

I suggested that this Court may review the result.

We also know from cases like Baker v. Carr and Reynolds v. Sims that this Court is very jealous of and protects the right to vote.

As was suggested earlier today, this really is not a right to vote case.

Nobody questions that any person is being disenfranchised.

Nobody questions that any vote has been diluted.

I somehow thought we were being asked to review the judgment of the Missouri Supreme Court on an issue of federal constitutional law.

I thought that’s why we were here.

Simon B. Buckner:

But whether that… Justice O’Connor, you’re correct, and that is why the appellants appealed this case here.

But in order to exercise that jurisdiction, there has to be a live controversy.

And if the Missouri Supreme Court and the lower court have determined and can construe the constitution in such a way that that federal issue does not arise–

Well, what if we disagree with your reading of it and we read their opinion as being based on the assumption that the Missouri Constitution requires the Board to be comprised of property owners?

Suppose that’s how we read it?

Simon B. Buckner:

–Then there are two questions that arise.

First, as to whether this is a justiciable controversy.

Second, as to whether there is a rational basis for such a requirement.

Simon B. Buckner:

We have suggested… well, there’s several potentially rational bases for this, and the trial court suggested, for example, that this Board considers land use issues and that real property owners may be better equipped to consider questions of land use than people who do not hold real–

Any real property owner or just a real property owner in St. Louis?

Simon B. Buckner:

–The trial court did not make any such distinction.

Well, you’re representing the Attorney General.

What do you think it means?

Any property owner?

Simon B. Buckner:

I think that from looking at the text of the Missouri Constitution that since nine persons are required to be electors of St. Louis County and nine of St. Louis City, and one of some other county in the state, that presumably they would be real property holders in those counties.

Except you don’t think they have to be real property owners at all?

Simon B. Buckner:

You’re right.

All right.

Simon B. Buckner:

Yes, sir.

But do you have to own the real property in that county?

Or do you have to be a person in that county who owns real property someplace?

The Missouri Constitution does not draw that distinction.

Well, again, if I may impose, what is your position?

Simon B. Buckner:

I think that it is rational to assume that when the people of the State of Missouri voted to adopt this provision that they intended this language to mean persons who reside in and own real property… in fact, were homeowners, since that is the most common form of real property ownership.

In St. Louis?

Simon B. Buckner:

In the–

Or one of the affected counties?

Simon B. Buckner:

–Yes, Your Honor.

In addition, have suggested in my brief that the process of purchasing a home, since home ownership is probably what the people presumed, is an educational process in that the person who purchases a home learns about real property values and the value of various amenities in the area, and the costs of these services.

This is an experience that somebody who has not gone through… an experience that someone who has not gone through this process will not have and not be able to bring to bear.

Well, what about this Court’s cases in Turner and Chappelle?

Simon B. Buckner:

We have… in the case of Turner and in the case of Chappelle, we have persons who are being asked to exercise administrative authority rather than, as in this case, legislative authority.

And for that reason, I maintain that this process under the Pacific States Telephone and Telegraph case does not–

Could the state allow or provide that bills in the legislature could only be introduced by property owners?

Simon B. Buckner:

–I think that in such a case we would run afoul of the… the Congress or the Executive, perhaps, on a guaranty clause question.

But, no, that would not be a reviewable controversy in this Court.

May I go back a moment to the interpretation of the Missouri Supreme Court’s opinion.

In essence, you’re arguing there was an adequate and independent state ground for the decision?

Isn’t that your–

Simon B. Buckner:

Yes, Your Honor.

–Does that court ever cite Michigan against Long and recognize the force of that opinion suggesting that when it intends to rely on an independent and adequate state ground, it has to make a clear statement to that effect?

Simon B. Buckner:

The court does not, of course, cite to Michigan v. Long in this particular case.

That’s right.

Simon B. Buckner:

The state–

But they are aware of that doctrine, I hope.

Simon B. Buckner:

–I am… I am aware of that doctrine.

Yes, Your Honor.

No.

I mean, the court is aware of that?

Simon B. Buckner:

Yes, it is.

They cite it in other cases?

Simon B. Buckner:

Yes, Your Honor.

The question, though, is, given this record, what does the Missouri Supreme Court opinion mean?

The appellants have been able to point to one ambiguous statement.

And, on the other hand, I can point to several clear statements throughout the record that say that it consists of members, it consists of electors.

The clear statement that the Missouri Supreme Court intended to rest its decision on an adequate state ground rather than on the ground that it argued… that it discussed about not exercising governmental powers, which I gather was an argument that you… hadn’t even been made in that court before.

Simon B. Buckner:

That is correct, Your Honor.

It’s a rather strange way to clearly rely on an independent and adequate state ground.

Simon B. Buckner:

I cannot point to a statement of the Missouri Supreme Court that says we are relying on this to the exclusion of all else.

I–

Of course, even if they didn’t state clearly that they were relying on an independent state ground, we… we still are confronted, before we can decide the federal ground, with the… with the difficulty o’ interpreting the Missouri Constitution, without any interpretation by the Missouri Supreme Court that’s clear one way or the other.

Simon B. Buckner:

–Yes–

I suppose.

Although you think it’s clear one way and your opponent thinks it’s clear the other.

I don’t think it’s clear, myself.

Simon B. Buckner:

–Yes, Your Honor.

You’re absolutely right.

Counselor, just as a matter of curiosity.

The Missouri Supreme Court… was written by Justice Donnelly, wasn’t, it?

Simon B. Buckner:

Yes, Your Honor.

Did the entire court sit on this case?

Simon B. Buckner:

Yes, Your Honor.

The full court?

Simon B. Buckner:

Yes, it did.

Unanimous opinion?

Simon B. Buckner:

Yes, Your Honor.

Even Justice Blackmar?

Simon B. Buckner:

Even Justice Blackmar?

For what it’s worth, this was Justice Donnelly’s last opinion on the Missouri Supreme Court.

He retired immediately after writing this opinion.

As a… we were discussing a short while ago, the rational basis for a land owner requirement… and that is, in addition to the findings of the trial court and the… the rational reason to have a homeowner and the educational experience of owning a home, in addition, somebody who owns real property within the district is, quite frankly, likely to stay there because there are certain transactional costs involved with selling the home and moving elsewhere.

Thus, the… a home owner requirement is analogous anyway, to a prospective residency requirement in that somebody who is likely to stay in a particular jurisdiction is more likely to be careful about structuring the government that he is going to live under, than somebody who is free to pick up and move in the near future.

Mr. Buckner, does Missouri have a certification procedure barring federal courts to ask the State Supreme Court what it means by something?

Simon B. Buckner:

No, Your Honor.

This would… this would have to be remanded.

Alternatively… rather than remanding it… bear in mind that what the state and the governments would like in this case is to have the appeal dismissed.

But what we are after in this case is an election.

We want to let the people of Metropolitan St. Louis vote and determine the kind of government under which they will live, Alternatively–

xxx election?

Simon B. Buckner:

–Pardon me.

Can’t they have the election?

Is there an injunction against the election?

Simon B. Buckner:

Yes.

After this opinion… or, this appeal… was taken to this Court, one of the members of the Board of Freeholders obtained an order precluding the election in the City and County–

Oh, I thought it was just voluntarily postponed.

No?

Simon B. Buckner:

–No.

There is a court order enjoining the election.

But it’s the–

–Is that from the district court or the–

Simon B. Buckner:

From the… I believe it’s the–

–From a state court?

Simon B. Buckner:

–St. Louis… it’s a state court.

A trial court in St. Louis.

A state court in St. Louis.

So, as I understand it, it’s the official position of the State of Missouri that homeowners are better qualified than all other electors to participate on certain governmental units?

Simon B. Buckner:

I am proposing this as an idea that might have occurred to the electorate at the time it adopted this.

Well, is it your position that that comports with the equal protection clause?

Simon B. Buckner:

I’m saying that there is a rational basis for believing that.

Yes, Your Honor.

And, therefore, it comports with the equal protection clause?

Simon B. Buckner:

Yes, Your Honor.

It’s also the position of the Attorney General of Missouri, I gather, that the Missouri Constitution doesn’t require that?

Simon B. Buckner:

Yes, Your Honor.

May I just clear up one thing?

When this… when Article 30, or whatever it is, was adopted… how long ago was this constitutional provision adopted?

Simon B. Buckner:

In 1924.

Sixty-five years.

There was not then a freeholder requirement for state electors, was there?

Simon B. Buckner:

For electors?

No, just for voters in the State of Missouri?

Simon B. Buckner:

No, Your Honor.

Okay.

Well, has the Missouri Supreme Court defined what a freeholder is for the purposes of some other provisions to the Constitution?

Simon B. Buckner:

As the appellants have cited, for other provisions of the Constitution, and notably the one in Article I, it has been defined to be an owner of real property.

But Article I is a provision that requires somebody to be a freeholder.

Simon B. Buckner:

Yes, Your Honor.

Your point is that this provision doesn’t necessarily require somebody to be a freeholder.

He just calls the Board a Board of Freeholders?

Simon B. Buckner:

Yes, Your Honor.

As I had–

A plain obvious reading of the language?

Simon B. Buckner:

–It’s a plain obvious reading of the Constitution that these people are required to be electors of various districts.

Yeah, all right.

Simon B. Buckner:

The… we were discussing quite a while ago the meaning of the word “judge”.

Sometimes it means one who sits on a case.

On election day, it means someone who supervises a polling place.

Well, that’s different than saying that the Board of Freeholders doesn’t mean a… that they have to be freeholders.

Simon B. Buckner:

But a board of judges at a racetrack refers to people who supervise stewards rather than–

Well, sure, but–

Simon B. Buckner:

–people who–

–they’re judges for that purpose.

Simon B. Buckner:

–But, the point is we use judge… the word “judge” to mean different things in different contexts.

And in the context of Section–

So freeholder means… might mean… might mean four or five different things, depending on where in the Constitution it is.

Simon B. Buckner:

–It is… in this particular section it is only a name given to a group of people who serve on a particular board.

These people, when we talk about appointment and qualifications in Section 30(a)–

And even if they happen to be freeholders, so-called, that doesn’t mean they have to own real property?

Simon B. Buckner:

–So the trial court found.

Yes, Your Honor.

Is that your position too?

Simon B. Buckner:

When using this word in a public law context, as found by the trial court, yes, that is, at this point, the law of Missouri.

When–

Has the Attorney General’s office ever taken a position on this?

Simon B. Buckner:

–I am not aware that our office has–

Have you ever taken the public position?

Simon B. Buckner:

–In the trial court and in the Supreme Court, yes, Your Honor.

In the public… did you ever tell the public that freeholders don’t mean freeholders?

Simon B. Buckner:

We have not issued any–

Did you ever?

In a speech or anything?

Did you do this anyplace other than in this case?

Did you ever say that freeholders didn’t mean freeholder?

Simon B. Buckner:

–There is a second case that was pending at about the same time in St. Louis County where we did take that position.

Yes, Your Honor.

Well, I take it you must have taken it in the trial court here.

Simon B. Buckner:

That is true.

You didn’t take it when you advised the Governor, though.

Simon B. Buckner:

The Governor is the former Attorney General and did not ask for our advice on this question.

[Laughter]

Touche.

Simon B. Buckner:

If there are no further questions, I would ask this Court to dismiss the appeal.

Thank you very much.

Thank you, Mr. Buckner.

Mr. O’Keefe, do you have rebuttal?

Kevin M. O’Keefe:

I do, Your Honor.

The shotgun arguments from the other side leave a lot of stray pellets that I’d like to try to pick up very briefly.

First of all, there is no question as to the meaning of the word freeholder in the English language or in the common law.

I think the state’s assertion that it has suddenly become mere surplusage, contrary to the rules of constitutional construction in the Missouri Constitution, that it has become devoid of meaning.

Were there a single appellate decision of any court in the English-speaking world in the 700 years since the foundations of common law to support that position, it might have more merit.

Well, what about the… what about the district court?

Circuit court.

I mean circuit court.

Kevin M. O’Keefe:

The… the St. Louis County Circuit Court, trial bench, as a conclusion of law, ruled that a freeholder qualification was not necessary, and as a matter of dicta, suggested that the term may have no meaning.

That’s as far as–

So there has been a court who says that the term is meaningless.

Kevin M. O’Keefe:

–Well, as a matter of dictum, the trial court in this case postulated that that was a potential.

The Missouri Supreme Court, of course, did not adopt that finding, or that conclusion.

Kevin M. O’Keefe:

And, in fact, one of the things which concerns the appellants is the very issue which Justice Scalia raised.

The red herring approach of the state’s wishing that there was an ambiguity in the Missouri Supreme Court’s decision doesn’t make it so.

The fact that they focused a lot of attention to debate a hypothetical ambiguity doesn’t make an ambiguity.

What the other side seeks to do is to read into the Missouri Supreme Court what they did not say, and to read out of the Missouri Supreme Court’s opinion what they did say.

And that is, first of all, inconsistent with the authority and jurisdiction of the Missouri Supreme Court to interpret the state statutes and Constitution of that state as it sees fit.

And it is also inconsistent with the findings of the Missouri Supreme Court when it specifically defined the constitutional use of the term freeholder.

There is–

Mr.–

Kevin M. O’Keefe:

–no ambiguity.

–Mr. O’Keefe, can I ask this?

I can understand how your clients have standing, if the Missouri Constitution requires these people to be… to be freeholders.

But, let’s assume that I don’t know what the Missouri Constitution requires and let’s assume I’m just looking at your “as applied” challenge.

Why do… why do your clients have standing on the “as applied” challenge if it appears that the only people on the list of names submitted… only one person was bumped off after this advice was given and that person is not among your clients?

Kevin M. O’Keefe:

To the contrary, Your Honor.

Father Reiner is a member of the class.

The class in this case is every person who could be subjected to discrimination on the property ownership requirement.

The class consists of every registered voter in the State of Missouri who does not own real property.

Well, that may be the class, but what about the named plaintiff?

Kevin M. O’Keefe:

Your Honor, we are before the Court as the defendants in a case put out by the state.

They designated the named parties; they defined the class.

Well–

Kevin M. O’Keefe:

For them to come now and suggest that we are not appropriate parties raises some substantial questions as to what sort of a judgment we are appealing from.

Excuse me.

–Well, I guess you have to get him in there.

I guess if he’s in the class, it’s all right.

But everybody else in the class hasn’t been harmed.

So, it really turns, then, on whether he’s in the class.

Kevin M. O’Keefe:

Your Honor, I don’t believe that’s necessary.

Both in Turner where the… at footnote 23 in the Turner decision where this Court discussed the fact that the local authorities can be relied upon or expected to obey the state law, and also in Carter v. Green County Jury Commissioners decided the same day, where the Court recognized–

That goes to the facial challenge.

I agree that if… if the Constitution says that, there’s no standing problem.

I’m only worried about the situation if the Constitution doesn’t say that but everybody believed it says that and everybody acted on that basis.

Then I wonder why anybody, except Father Reiner, was it–

Kevin M. O’Keefe:

–Well, first of all, Governor Ashcroft, one of the appellees, and the person responsible for selecting the 19th member of the Board, did specify that he did not consider and would not consider anyone who did not own real property.

It was an applied criterion in the Governor’s choice from among all the registered voters in the state who do not reside in the City or County of St. Louis.

So, certainly, all of them are clearly specifically, and factually, within the class.

The… the questions also suggest the state’s position that there is a rational basis for this criteria.

Of course, first of all, the Missouri Supreme Court has not identified any legitimate state objective which it claims is served by the exclusion of non-property owners, non-freeholders from service on this body.

Secondly, even the trial court–

–Well, in rational basis cases doesn’t the… don’t our cases sometimes suggest that if a court can dream up one–

Kevin M. O’Keefe:

–Generally, Your Honor, they’re required to at least dream it up before they finish the case.

–Uh-huh.

[Laughter]

Kevin M. O’Keefe:

As opposed to relying on this Court to–

Yeah, but nevertheless–

Kevin M. O’Keefe:

–dream up a justification for them.

–Well, I know, but judges might think that… that they… even if one isn’t suggested, the judges might think there is one.

Kevin M. O’Keefe:

Well, Your Honor, unless they articulate what that might be, it’s very difficult for this Court to hypothesize what reasoning may have gone into a decision which does not support that.

Well, what if we thought… what if we thought there was a perfectly good reason for that?

Kevin M. O’Keefe:

Your Honor–

Are we forbidden to affirm?

Kevin M. O’Keefe:

–If you believed that was consistent with constitutional… equal protection analysis–

Well, how about… how about… is it consistent with our cases?

Kevin M. O’Keefe:

–I believe it is not in… it is not consistent with your cases to make such a conclusion.

Well, there certainly are cases from this Court that say that we may speculate as to what a rational basis would have been.

Williams v. Lee Optical Company,–

Kevin M. O’Keefe:

Your Honor, I’m not going to confess… I’m not going to assert that I’m familiar with that particular decision.

In general, I–

–In any event, we do speculate–

Kevin M. O’Keefe:

–Pardon me?

–And, in any event, we do speculate.

[Laughter]

Kevin M. O’Keefe:

Well, certainly, in this case you wouldn’t speculate.

Believe it, Mr. O’Keefe.

No.

Kevin M. O’Keefe:

Pardon me?

After all, it’s just a wasted word.

Kevin M. O’Keefe:

Well, Your Honor, that… it is the state’s contention that it’s a wasted word.

But, of course, there… every use of the words in the Constitution are presumed intentional and meaningful and not surplusage.

I’d also like to just point out that the state has conceded that it believes that this Board of Freeholders… first of all, it abandoned the reasoning of the Missouri Supreme Court to justify the relief they seek now, but also that they have contended that the Board of Freeholders process is equivalent to the state legislature and the right of initiative, and have even suggested to this Court that it would be an appropriate application of a rational standard to limit… in response to the question asked previously… to limit the opportunity to introduce bills in the Missouri legislature to only property owners.

Presumably they also suggest it would be rational to limit the right of initiative to property owners.

Essentially what they are suggesting is that Missouri is to be a two-tiered class… a two-class society.

One class, the landed gentry allowed to participate at the front and back end of the governmental process, while those who do not enjoy the privilege, are allowed to participate only at the back end of the process.

A hundred and forty-seven years ago this month, the citizens of the State of Rhode Island went into rebellion.

Armed rebellion in the streets for the purpose of protecting the right of the participation in government, free of a property ownership qualification.

The doors rebellion was a sad chapter in that state’s history and in this country’s history.

But the appellants in this case seek no more greater right than that.

Thank you, Your Honor.

William H. Rehnquist:

Thank you, Mr. O’Keefe.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.