United Brotherhood of Carpenters & Joiners of America, Local 610, AFL-CIO v. Scott

PETITIONER:United Brotherhood of Carpenters & Joiners of America, Local 610, AFL-CIO
RESPONDENT:Scott
LOCATION:Internal Revenue Service

DOCKET NO.: 82-486
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 463 US 825 (1983)
ARGUED: Apr 26, 1983
DECIDED: Jul 05, 1983

ADVOCATES:
Laurence Stephen Gold – on behalf of the Petitioners
Robert Q. Keith – on behalf of the Respondents

Facts of the case

Question

Audio Transcription for Oral Argument – April 26, 1983 in United Brotherhood of Carpenters & Joiners of America, Local 610, AFL-CIO v. Scott

Warren E. Burger:

We’ll hear arguments next in United Brotherhood of Carpenters against Scott and others.

Mr. Gold, you may proceed whenever you are ready.

Laurence Stephen Gold:

Thank you, Mr. Chief Justice.

This case concerns the scope of 42 U.S.C. Section 1985(3), the lineal descendent provision of Section 2 of the 1871 Civil Rights Act.

As the Court of Appeals majority stated, this case grows out of an episode of mob violence at the Alligator Bayou Pumping Station construction site near Port Arthur, Texas that caused both serious injuries and substantial property damage.

That wrongdoing led to this federal court suit brought by two individuals and by the general contractor at that job site and to avert it in favor of the plaintiffs and against three local unions which are the petitioners here.

The basic legal questions on which the Fifth Circuit sitting en banc split 14 to nine concern the meaning of the phrases “equal protection of the laws” and

“equal privileges and immunities under the laws. “

as used in Section 1985(3).

Sandra Day O’Connor:

Mr. Gold, why would a plaintiff or group of plaintiffs file a suit under Section 1985(3) instead of a state tort action?

Is it because of the recovery potentially of attorney’s fees or what?

Laurence Stephen Gold:

I am hard pressed to understand that myself, Justice O’Connor.

I take it that the hope here was that this would be a more effective law suit from the plaintiffs’ standpoint despite the–

Sandra Day O’Connor:

You think that would center around the recovery of attorney’s fees question?

Laurence Stephen Gold:

–That is, certainly in light of the Civil Rights Act attorney’s fees statute, that could well be a motive, and the countervailing… why the plaintiffs were not impressed by the countervailing consideration that there are very, very difficult legal questions here and a straightforward tort case in the state court system, I am really not privy to–

William H. Rehnquist:

Well, I suppose in Beaumont, Port Arthur you have got elected judges and there might be some feeling that you do not get quite the same neutrality from elected judges as you do from lifetime federal judges.

Laurence Stephen Gold:

–There are also appellate judges in Texas up and down the system, and I can only say that there isn’t a whisper in this record that the state justice system was not open to and fully protective of the rights and interests of plaintiff companies and non-union employees in the State of Texas.

Indeed, there were 13 indictments growing out of this episode, three convictions, two people in jail for substantial terms indeed.

So in all those respects this is not your garden variety case for choosing a federal court as opposed to a state court.

The en banc majority below analyzed Section 1985(3) as requiring a showing aside from the conspiracy and acts pursuant to the conspiracy and injury are the violation of some protected right and moreover class-based invidiously discriminatory animus motivating the invasion of that right and motivating the conspiracy.

The court found that the right of economic association is such a protected right and, indeed, analyzed the matter as comprising a protected right under the First and Fourteenth Amendments.

That court rejected our contention that for 1985(3), as is generally true, to show the invasion of a First and Fourteenth Amendment right as opposed to the invasion of the rights guaranteed by the Thirteenth Amendment or the rights guaranteed by the right of travel.

There has to be a showing of state action.

That court took the view that the contention I have just outlined had been rejected in Griffin v. Breckenridge, this Court’s leading modern case on the scope of Section 1985(3).

We cannot improve upon, and we have quoted at page 39 of our opening brief, the blue brief, the analysis of this issue by Justice Stevens in Novotny.

We rest on that analysis and in terms of an analysis of the statute, neither the court below nor the respondents challenge the accuracy of the insights stated there.

Rather both contend that that view of the statute is precluded by Griffin.

It is our view that Griffin simply did not address this problem.

Griffin was a case involving a conspiracy aimed at black Americans attempting to assert their civil rights and those who would assist them.

The court analyzed the matter as resting on the Thirteenth Amendment base and the right and power of Congress to do away with the badges and incidence of slavery.

Laurence Stephen Gold:

It is perfectly well settled that Congress in no way, shape, or form is limited by a state action requirement in those regards and that those constitutional rights, both the rights vouchsafed by the Thirteenth Amendment and the rights stated by the right of travel are protected against private interferences.

William H. Rehnquist:

Can you think of any more rights, Mr. Gold, that would fall on that side of the line that Justice Stevens drew?

Laurence Stephen Gold:

From our view of the cases, Justice Rehnquist, we know of no other constitutional rights which are, of those stated in the Thirteenth, Fourteenth, and Fifteenth Amendment, which do no have a state action component to them.

And it is hardly surprising that Congress would be particularly concerned about Thirteenth Amendment rights in terms of the 1871 Act because the voluminous legislative history is instinct on every page with a desire to protect the rights of the newly enfranchised freedmen and to ensure that the wrongdoing that was taking place in the South against them would have a federal remedy.

At the same time, Section 2, which was the point of controversy in the 1871 Act, was shaped by the moderate Republicans in the House who were not only mindful of that major interest and concern, the one I have just outlined, but also saw an important value in maintaining a system of federalism at the time as they understood that system.

The debate in the House and the strong controversy that Section 2, as originally introduced, created, which has been noted by this Court in numerous decisions, concerned how to advance both these values.

If there had only been one value, the need to end what was seen by every segment of the majority party at that time, the Republicans, as outrages in the South, there would have been no division, no compromise, no internal controversy in the House.

But there was this understanding of the fact that there were two values and a desire to put down Klan violence without doing violence to the Thirteenth, Fourteenth, and Fifteenth Amendments as the moderate Republicans understood those amendments.

The moderates prevailed.

The Section 2 was rewritten in response to Representative Garfield’s speech, which we have laid out at perhaps overly great length in our brief.

There is no doubt when you read the debate that Section 2 of the 1871 Act was redrafted to meet that speech and had probably been redrafted before the speech was given because it concludes with Representative Garfield saying I’m confident that language can be drafted which will meet these concerns, concerns about the federal government intruding into the proper state domain and becoming the primary guarantor of property and individual rights.

Low and behold the next day Representative Shellabarger, who was managing the bill, comes in and says here is an amendment presented by friends of this legislation to assure that we can go forward, and the amendment, by adding the terms “equal protection of the laws” and

“equal privileges and immunities of the laws. “

met precisely the lines and the concerns stated by Representative Garfield.

If we are right in that point, since there is not a hint of state action in this case, the decision below must be reversed.

But even if it is viewed, even if the statute is viewed as protecting basic constitutional rights against private conspiracy where there is no state action, we think the same result follows, because the court below was of the view that working for a non-union employer is a First Amendment right.

It is our understanding based on this Court’s cases that the particular economic relations between employers and employees is not governed by the First Amendment but is governed by state law and Congress’ power to enact legislation pursuant to the commerce clause.

William H. Rehnquist:

You do not think the right to work for a union employer stands on any different footing than the right to work for a non-union employer?

Laurence Stephen Gold:

No.

If Smith v. Arkansas does not take away our dreams on that point, I do not know what will.

Lewis F. Powell, Jr.:

Mr. Gold, I want to understand you.

Are you saying that, though a constitutional right for an individual to decide whether he wishes to work for a non-union or prefers to work for a union employer… in other words, a man is looking for employment.

He may choose a union shop, a closed shop, or an employer with no union connections whatever.

You are saying he does not have that right to make that choice?

Laurence Stephen Gold:

He may have a right in some abstract sense of that term–

Lewis F. Powell, Jr.:

You think the state could forbid it?

Laurence Stephen Gold:

–Could the… I apologize–

Lewis F. Powell, Jr.:

Could the state enact a statute that said everyone who seeks employment in this state must seek non-union employment?

Laurence Stephen Gold:

–I do not think that the First Amendment–

Lewis F. Powell, Jr.:

Would any provision in the Constitution forbid that?

Laurence Stephen Gold:

–Whether substantive due process would return–

Lewis F. Powell, Jr.:

You would not like it, would you?

Laurence Stephen Gold:

–No.

I think we had as much substantive due process is we could stand through the first third of this century, but it is our understanding and our view that insofar as the state regulates whether there will be a collective bargaining system or there will be a system of managerial prerogative and insofar as the state regulates whether individuals will work in a system where terms and conditions are set one way or another and insofar as the state regulates even a matter such as, or the Congress in each instance, regulates whether there will be a union that represents all the people on a particular job, those are not First Amendment questions.

There is no right of economic freedom of association of the kind the Court of Appeals was talking about any more than there is a right of free association to set up certain kinds of corporations or certain kinds of partnerships of the kind entrepreneurs may find beneficial to their interest free and clear of state regulation of the field.

We do not believe that the Sherman Act is either required by or is to be tested against the First Amendment.

Lewis F. Powell, Jr.:

But I was wondering about the right of an individual to make a choice as to where he wishes to work and with and for whom.

Laurence Stephen Gold:

I do not believe that an individual has such a constitutional right under the First Amendment.

Let me–

Lewis F. Powell, Jr.:

Under any provision of the Constitution–

Laurence Stephen Gold:

–I know of no provision.

Lewis F. Powell, Jr.:

–This sounds like the Soviet Union to me where they tell you where you can work and where you cannot.

How about the Thirteenth Amendment?

Laurence Stephen Gold:

I was wondering about that.

I do not think that if, for example… let me try to grapple with the question in this way.

If in a particular area there are no places of employment where unions have succeeded in becoming majority representatives as provided for in the National Labor Relations Act, I do not think an individual could sue anybody on the view that he was being deprived of his right to work under union conditions.

On the other hand, if unions succeeded in organizing the places of employment in the locality, I do not believe that the opposite law suit would lie, either.

Obviously the individual has a freedom.

Perhaps this is the clearest I can be in answering this.

I believe that the individual has a freedom to move from place to place and to look for employment that suits him.

I do not believe that he has a constitutional right to demand that certain conditions obtain.

The second element that the Court of Appeals understood to be encompassed in Section 1985(3) or at least in the aspect we are discussing here, the equal protection of the laws and equal privileges and immunities of the laws aspect of the statute, is a requirement that there be a showing of class-based invidiously discriminatory animus and that court segmented that requirement as follows:

First the court stated that such animus is shown if there is animus against a class of those with common characteristics of an inherent nature and secondly, a particular application here, recognizing that there was no such class, the Court of Appeals said that the statute also encompasses conspiracies motivated by an animus of the kind Congress was trying to protect against in enacting the 1871 Act.

The Court of Appeals read the legislative history of the 1871 Act to show an intent to act against conspiracies motivated by an animus against exercises of the right of economic association, which exercises of that right ignite regional hostility.

It is our view that that dramatically overreads the statute and Congress’ intent therein.

We know what the core of what Congress sought to do was.

It was to protect the freedmen and those who were seeking to assure that the freedmen secured the rights provided by the Thirteenth, Fourteenth, and Fifteenth Amendment.

Every page of the legislative history is instinct with that intention except for scattered passages and in the very considerable legislative history debated, I might say, at a very high and intense level given the gravity of the moment, there are no other references to a congressional intent.

In Griffin the Court left open the question of whether any intent under other than racial animus or bias supports a 1985(3) cause of action.

It is our position that given the fact that this is a statute stated in general terms, one can generalize from the particular concerns of Congress.

Laurence Stephen Gold:

We would formulate the animus test as class-based animus against those who have common characteristics of an inherent nature who are offered special protection under the Equal Protection Clauses and in that sense that is the first part of what the Court of Appeals understood class-based animus to be and those who are aiding the former to secure that protection.

The area, I think, of legitimate dispute is what is one to make of the repeated references in the legislative history to the interest in protecting not only the freedmen but Republicans and Northerners and others who were also the object of the Klan.

In the legislative materials we set out, both in our opening brief and at pages 11 to 18 of our reply brief, it seems to us apparent that the understanding at the time was that those in addition to the freedmen who were to be protected were the individuals who were seeking to assure the protections to that group of Americans guaranteed by the Thirteenth, Fourteenth, and Fifteenth Amendments.

It was not Republicans as such.

It was not the Northerners as such.

It was to those who were embarked in the enterprise of making those amendments real.

William H. Rehnquist:

Mr. Gold, what if say up in Vermont the natives of Vermont have the same attitude toward Democrats that many Southerners at that time had towards the Republicans.

Do you think that if a Democrat went up to Vermont and was set upon that he would have an action under this section?

Laurence Stephen Gold:

The–

William H. Rehnquist:

Nothing to do with freedmen, obviously.

Laurence Stephen Gold:

–No.

We would think that the comparable situations that one can envisage that the statute would extend to would be those such as actions against Japanese-Americans at the beginning of the Second World War is a possibility, but we do not believe that Congress had any intent in going beyond classes that are defined by more than the fact that people are doing certain things which other people do not like and therefore are set upon.

Indeed, the broadest statement, that of Senator Edmunds, which is relied on, and it is wholly unique in this entire legislative history, proposes an antithesis between feuds which are generated by particular activities that individuals do not like and class-based animus.

So my answer to your question would be that the weight of the legislative evidence is that the protection extends to classes of inherent characteristics who are the objects of discrimination and depravation–

William J. Brennan, Jr.:

Would illegitimates be such a class?

Laurence Stephen Gold:

–Under this Court’s cases in the development of Fourteenth Amendment law, that might be.

Again, while I do not think it was a subject of interest, immediate interest to the 1871 Congress, women could be such a class.

The question is is it a class marked by an inherent characteristic–

William J. Brennan, Jr.:

Discrete, insular–

Laurence Stephen Gold:

–Right, and is the animus against either the people of that class or those who were assisting members of that class to enjoy the full panoply of rights stated in the Thirteenth, Fourteenth, and Fifteenth Amendments.

Thurgood Marshall:

–Mr. Gold, the Slaughterhouse case set a law there, did it not?

Laurence Stephen Gold:

If it–

Thurgood Marshall:

Nobody pays any attention to it any more, but that is an awful clear language in that.

Laurence Stephen Gold:

–We have pondered whether that case throws light on it, and in a sense–

Thurgood Marshall:

Do you think it is just dead?

Laurence Stephen Gold:

–We are not sure.

Thurgood Marshall:

I might breathe some life in it.

Warren E. Burger:

Mr. Keith.

Robert Q. Keith:

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

At the outset of my presentation, may I revert to the facts momentarily, and we might start with the dissent of the Fifth Circuit who called this an unprovoked and brutal attack on law-abiding citizens.

Robert Q. Keith:

The trial court in his opinion which is in the Joint Appendix stated that this arose out of a demonstration or citizen protest where people were voicing concern over outside, non-union workers in a union area much like the Vermonter, the Northerner, who was traveling to the South in Reconstruction times.

These two statements were based on fact, and they were best capsulated by the attorney for defendant in the opening statement to the trial court when he said, and it becomes important to the legislative history, what happened here… and this is the attorney for the defendant… what happened here arises from the fact that the labor organizations are strong in this area when outside contractors come into the area employing people from outside the state.

Just as Senator Edmund in 1871 was concerned with the Northerner, the Vermonter, the Republican, the Democrat, the Methodist, the Catholic and the recently freed man, this case comes as close factually to any case that has ever been before any of the courts under 1985(3).

In Griffin the Court set out four elements, and if I may respectfully refer to them as the Court did and gave them a separate number.

One, that the defendants conspired, and there was a conspiracy.

Secondly, that such was for the purpose of depriving any person or class of persons of equal protection of the laws, or equal–

Thurgood Marshall:

Counsel, isn’t Texas a right-to-work state?

Robert Q. Keith:

–Yes, sir.

It is.

Thurgood Marshall:

I have trouble with your argument about it, so well organized by labor unions.

Robert Q. Keith:

The record shows, Your Honor, that in this particular geographic locality, and all of the evidence is that the labor movement and particularly in the construction trades, is very, very pervasive.

This is on the Texas Gulf coast.

The oil and chemical industries are the dominant employers, and there is very heavy union organization.

It has been since the 1930s.

This dispute arose and this attack arose out of the outsider coming in and choosing to associate with other non-union workers.

In Griffin, the Court spoke of this equal protection concept, meaning that there must be some class-based invidiously discriminatory animus.

The Circuit found, and I think there is clear evidence, that there was pervasive animus both in extent and intensity.

Men were beaten with two-by-fours, with iron bars.

Equipment was turned over, drag lines, bulldozers, big saws, offices.

Men were beaten over the head.

They were hospitalized.

Buildings were pillaged and burned.

This was the act done in furtherance of that conspiracy, and then we come respectfully to Section 4(a) as analyzed by Griffin and that is, whereby another was injured in his person or property.

Very clearly my clients as plaintiffs were injured in their personal property.

This injury arose out of this invidiously discriminatory animus.

Byron R. White:

What did it deprive them of?

What right?

Robert Q. Keith:

Best said, it deprived us, if I may code myself as a plaintiff for the moment… it deprived us of the equal enjoyment of personal security which all of us enjoy under the law.

Byron R. White:

Do you think 1985(3) covers that?

Robert Q. Keith:

Yes, sir, and I believe the Court’s decision in Griffin and the legislative history will support that.

Robert Q. Keith:

Furthermore–

Byron R. White:

How does Griffin have gotten to the Thirteenth Amendment case?

Robert Q. Keith:

–Griffin was at least a Thirteenth Amendment case and a right to travel case, and Griffin spoke in this instance of a class-based invidiously discriminatory animus.

Byron R. White:

You always have to have that.

Robert Q. Keith:

Yes, sir, but that is the right that is violated.

Bear in mind this, that the federal statute was aimed at the conspiracy.

Byron R. White:

Tell me again, what right is it?

What is it in this case?

Robert Q. Keith:

In this case I have, we have the right to enjoy equally the security from unprovoked attack.

We also have under the privileges–

Byron R. White:

So 1985(3) covers any assault that is performed by two people?

Robert Q. Keith:

–No, sir, not at all.

There must be a class-based–

Byron R. White:

If they just attacked red-headed people?

Robert Q. Keith:

–If there is a class-based invidiously discriminatory animus that is both pervasive as in… to extent and intensity, yes.

Warren E. Burger:

Class basis on both sides?

Robert Q. Keith:

Not necessarily, Your Honor, but there must be a conspiracy.

I could not… in abstract one person cannot commit an act and thus violate 1985(3).

There must be those acting in concert under conspiracy.

Byron R. White:

So you do not think there is any necessity for the conspiracy to interfere with the efforts of the state to protect people?

Robert Q. Keith:

That is correct.

Nowhere in 1985(3) is that necessary.

You see, at the time they adopted this there were four other provisions that were adopted also, and state action and interference with state action are dealt with separately.

So we do not need to look to those as you consider 1985(3).

Thurgood Marshall:

Eighty-five three says equal protection.

Robert Q. Keith:

Yes, sir, or enjoyment of equal privileges and immunities.

Thurgood Marshall:

Well, so you will claim under immunities?

Robert Q. Keith:

We claim in this instance, sir, under–

Thurgood Marshall:

You cannot claim equal protection.

Robert Q. Keith:

–Yes, sir.

Thurgood Marshall:

Well, where is the state?

The state says equal protection.

Robert Q. Keith:

We do not claim–

Thurgood Marshall:

Well, where did you get equal protection from if you did not get it from the Fourteenth Amendment?

Robert Q. Keith:

–The Congress, Your Honor, did not say equal protection under the Fourteenth Amendment.

They say–

Thurgood Marshall:

But you say equal protection of the law–

Robert Q. Keith:

–That is correct, yes, sir.

Thurgood Marshall:

–and the only place you find that in the Constitution is in the Fourteenth Amendment.

Robert Q. Keith:

Yes, sir.

Thurgood Marshall:

Isn’t that correct?

Robert Q. Keith:

That is my understanding.

Thurgood Marshall:

So they took it from the Fourteenth Amendment.

Robert Q. Keith:

They took the concept of equal–

Thurgood Marshall:

But they left the state in the Fourteenth Amendment.

Robert Q. Keith:

–They left the state in the Fourteenth Amendment.

Thurgood Marshall:

They just took the equal protection and left the state.

Robert Q. Keith:

Now, there is a view supported by the legislative history that at the time Congress enacted this that they thought they were enacting a statute under the Fourteenth Amendment, Section Five, but we do not need to reach that in this case.

Bear in mind this, if I may pursue it a moment more, when we speak of the equal protection, we are speaking about the animus.

We are not speaking about some violation of a constitutional right.

We are speaking about the animus, and in this instance that animus was to deprive us of equal enjoyment of the law in peace and security to our person.

The animus also extended to equal privileges and immunities in that we had the right to choose with whom we associated.

In the exercise of that right under the First Amendment if you bring the state in, but in the exercise of our right of association we then became brutally and violently assaulted.

The animus, Your Honor, was affected in this case both by equal protection and equal privileges and immunities.

William H. Rehnquist:

Well, Mr. Keith, how do you get… I have the same basic question Mr. Justice Marshall had.

How do you get deprived of equal protection of the law by private individuals?

These people were not deprived of any protection of the law that I can see.

Robert Q. Keith:

Sir, it is not that you were deprived, thus injured, thus you have a cause of action.

There was no depravation which in a causal proximate cause sense led to this cause of action.

The denial, if you will, relates to the animus.

William H. Rehnquist:

But I want to get back to the Fourteenth.

To what extent are you relying on the Fourteenth Amendment as a basis for Congress’ enactment of this statute that you say gives you a claim?

Robert Q. Keith:

None.

William H. Rehnquist:

Well, then what is the authority for Congress to act?

Robert Q. Keith:

In this instance the commerce clause.

William H. Rehnquist:

You say Congress relied on the commerce clause in passing 1985?

Robert Q. Keith:

At this time–

William H. Rehnquist:

You mean then 1983, the present–

Robert Q. Keith:

–Today, yes, sir.

Congress clearly has a constitutional authority–

William H. Rehnquist:

–I am talking about 1871.

Robert Q. Keith:

–At the time Congress adopted 1985, their perception was that this was a wrong that needed correcting and that they had the authority to do so under Section 5 of the Fourteenth Amendment.

This Court does not need to address that question in this case.

That may be another day and another time.

The Congress has the authority under the commerce clause, clearly under the facts of this case, to adopt 1985(3).

This was a federal project.

It involved–

William H. Rehnquist:

But there is not the slightest indication from the legislative debates that I have seen in 1871 that Congress gave any thought to the commerce clause.

Robert Q. Keith:

–That is correct.

Byron R. White:

And if they had given some thought to it, they could not possibly have imagined that the commerce clause would authorize this kind of an interference with it.

Robert Q. Keith:

As I understand the test today, sir–

Byron R. White:

No, but as of that time.

Robert Q. Keith:

–The commerce clause was given a more restrictive application 100 years ago, yes, but the question today is the constitutionality of the Act and the authority of Congress to enact it.

Byron R. White:

No, the question is construing the statute they read.

Robert Q. Keith:

Yes, sir.

Byron R. White:

And if they purported to act under the Fourteenth Amendment, I am sure they thought they were complying with, they were staying within its limits.

If you say the limits were so and so, those are the limits of the statute, if you say that is what Congress intended.

Robert Q. Keith:

No, sir.

The Fourteenth Amendment did not limit Congress’ action.

Congress was federalizing a particular offense.

Byron R. White:

Under what authority?

Robert Q. Keith:

Under the authority of the Fourteenth Amendment, Congress says–

Byron R. White:

All right.

Do you think Congress, purporting to act under the Fourteenth Amendment, could just have passed a murder statute of general applicability all over the country on the theory that they were… do you think that would be–

Robert Q. Keith:

–That was the type of question that was subject to the debate, exactly.

When Congress enacted what this Court has called Section 2, that is, the discriminatory animus, instead of adopting this general murder statute, Congress adopted the limiting amendment which requires the animus that we have spoken of.

The animus is to deprive one under these circumstances of equal protection, that is the equal enjoyment of the laws or equal privilege under the laws.

Now–

Sandra Day O’Connor:

–Mr. Keith, would just any group that shared common political or social beliefs qualify for the class of plaintiffs that you would see covered by the statute?

Robert Q. Keith:

–No, Justice O’Connor.

Bear in mind that class is really defined in the mind of the defendants.

It is the defendant’s perception that these people, whomever they may be, in this case those who were associating on this job, are morally inferior.

For some reason they lack the same standing under the law as the rest of us.

They are not entitled to the same protection under the law.

In this instance–

Sandra Day O’Connor:

So to define the class we look in the minds of the defendants to see–

Robert Q. Keith:

–As represented by their res gestae statements at the time and as represented by their conspiratorial actions before and in the acts done in furtherance of the conspiracy, yes.

In this instance the res gestae statements are, man, get out of here.

You are crazy.

This is union country.

Get out of Jefferson County and don’t set your feet back in here.

Much like the Jewish people at the synagogue, or the Catholics at mass, these people were assaulted at a place where they congregate, where they associate, as they have under state law as well as federal law a right to do.

Hypothetically there may be some other circumstance that would be more arguable as to whether it is or is not a class, but clearly it is not a Rule 23 class such as numerocity, commonality, and definiteness.

William J. Brennan, Jr.:

–Mr. Keith, under your view would a private men’s club be subject to a 1985(3) suit by women?

Robert Q. Keith:

No.

Sandra Day O’Connor:

If the women thought they were inferior?

Robert Q. Keith:

No.

I could limit it in a number of different ways, but there would not be class… it would not necessarily be a conspiracy, although you might say the men by their charter agree to something.

There would not be any animus of the type, and the Fifth Circuit spoke of this, of the type the framers of the amendment were intending.

William J. Brennan, Jr.:

Well, instead of women suppose it is blacks.

Robert Q. Keith:

If they are beaten and assaulted because of that status–

William J. Brennan, Jr.:

No they are just denied–

Robert Q. Keith:

–Excluded–

William J. Brennan, Jr.:

–excluded from the white male club.

Robert Q. Keith:

–I do not perceive that as the animus conceived by the–

William J. Brennan, Jr.:

The original purpose I gather… animus initially was in part at least the freedmen, was it not?

Robert Q. Keith:

–Yes, sir, in part the freedmen, but it was basically economic in that the Northerner, the Vermonter, the freedman was now taking over the place or taking a place in this new economic order.

The Act was basically derived at those who were exercising economic activity.

Thurgood Marshall:

You keep talking about economic and all.

I thought the basis of these statutes were the Black Codes of the south, the Black Codes.

Robert Q. Keith:

Yes, sir, they were.

Thurgood Marshall:

Don’t tell me you never heard of them.

Robert Q. Keith:

Yes, sir.

I did not understand the question.

The–

Thurgood Marshall:

Is that not the reason for this statute?

Robert Q. Keith:

–Yes, sir, but what was happening was–

Thurgood Marshall:

Your people do not qualify under that, do they?

Robert Q. Keith:

–What was happening was that the Northerner was going to the South, was being elected to the legislature, was operating stores.

He was being beaten and pillaged and violated just as was the freedman.

Thurgood Marshall:

In ’71?

Robert Q. Keith:

Yes, sir, and that is exactly what the legislative history spoke to was the conduct toward the black man and toward these new persons in the community.

Thurgood Marshall:

How come none of the early cases mentioned it?

I mean, the earlier decisions of this Court.

Robert Q. Keith:

Well, respectfully, there are just two.

Thurgood Marshall:

Just two?

There are four of them in Volume 100.

Robert Q. Keith:

Well–

Thurgood Marshall:

In one volume.

Robert Q. Keith:

–Speaking of the–

Thurgood Marshall:

I think either three or four.

Robert Q. Keith:

–Griffin since 1962 is the only time that this Court has really written on this 1985(3), and those men–

Thurgood Marshall:

The whole point is you have got a clear almost undefendable action in the state court.

Right?

Robert Q. Keith:

–There is an action in the state court, yes, sir.

Thurgood Marshall:

You are going to have a dual recovery here?

Robert Q. Keith:

No, sir.

Thurgood Marshall:

Sir?

Robert Q. Keith:

No, sir, not in any way.

Thurgood Marshall:

Are you going to drop your state one?

Robert Q. Keith:

I have never brought a state court suit.

Thurgood Marshall:

Sir?

Robert Q. Keith:

I never brought this as a state court suit.

Thurgood Marshall:

I thought you said there were two involved in this same one.

I am talking about your plaintiffs.

Robert Q. Keith:

My plaintiffs in this case brought one law suit and that was in this Court.

Thurgood Marshall:

Yes, but you could have brought it in the state court.

Robert Q. Keith:

We could have brought a law suit in the state court.

There is no question about that.

Thurgood Marshall:

Now, to get back to Justice O’Connor’s question before, why the federal instead of the state court?

Robert Q. Keith:

Am I free to answer that question as the lawyer who brought the case?

The reason why it was, at the very time I brought this suit, there were two state court proceedings going on involving identical issues where the parties plaintiff were getting their brains beaten out, unable to get an injunction, and I was first seeking an injunction for my clients to protect them as they returned to work.

I was confident that with the difficulties these other plaintiffs were having at the exact same time, I could not get an injunction.

So I sought a remedy under the federal law where I could obtain an injunction.

That is why I brought the suit in the federal court.

It is the only law suit that we have ever brought–

Thurgood Marshall:

And it was easier.

Robert Q. Keith:

–Well, it has not been easy.

[Laughter]

It is no easier today, is it?

Robert Q. Keith:

No, sir, it is no easier today.

But very clearly, and if I may respectfully distinguish my case from Dombrowski or Novotny.

In this case, my clients suffered injury to person and property as described by Section 4(a) very clearly.

In Dombrowski out of the Sixth Circuit, the Seventh Circuit, or Novotny, neither of those plaintiffs suffered injury to person or property.

And in Griffin the Court said that there was a recovery for those who suffer injury to personal property or to those who are denied equal privileges and immunities as citizens of the national government.

So I would respectfully say to you that this case is legally and factually different from each of those for that very reason.

Those two cases were what we have called, in our brief, Section 4(b) cases which, Mr. Justice White, would or do call for a “violation of a constitutional right” which in this instance would call for either a racial violation, a travel violation or a state action involved.

If I may answer the question of Mr. Justice Rehnquist, are there other constitutional rights that may be involved.

We can conceive of none except as a person may be enjoying security or freedom or peace from assault.

William H. Rehnquist:

Do you think that is basically a right protected by the federal constitution, the right to security or respite or freedom from assault?

Robert Q. Keith:

Equal protection under the laws–

William H. Rehnquist:

Supposing everybody is getting beaten up?

Robert Q. Keith:

–Then there would be no inequality of protection.

Certainly that is true, but in this instance and in no circumstances have been presented the case that you posit.

Byron R. White:

Where is the right… where do you get that right of physical security under the federal constitution from assault?

Robert Q. Keith:

I have–

Byron R. White:

A private person.

Robert Q. Keith:

–I have the right under the state law to this freedom, and then I have the right as a federal citizen, a national citizen, to equal application of that law.

When the marauder takes it in his own hands and treats me differently, irrationally, for no legitimate reason, then–

Byron R. White:

So you do suggest, I suppose, that the federal government could have a general tort law, general criminal law to pick up all the crimes around if they involve some injury to person and property?

Robert Q. Keith:

–No, sir, indeed not–

Byron R. White:

If they were conspiracies.

Robert Q. Keith:

–And if they were class-based–

Byron R. White:

Yes.

Robert Q. Keith:

–animus–

Byron R. White:

Then yes.

Robert Q. Keith:

–and with this invidious discrimination, yes–

Byron R. White:

Then yes.

Robert Q. Keith:

–but only if there is that conspiracy with that class-based discriminatory animus.

William H. Rehnquist:

You say that the gist of the thing is denying your clients the equal protection of the law even though the State of Texas apparently is perfectly willing to enforce the law against everybody evenhandedly.

Robert Q. Keith:

That is correct, but that is the animus, Your Honor.

That is not necessarily the cause of action.

That is just an element of it, and this so-called violation does not need to lead to injury in a proximate cause sense.

All this does was show that the animus arose in this violation of my equal protection.

William H. Rehnquist:

So there is really no state action involved in all.

Robert Q. Keith:

That is correct.

There is no state action here, nor is there any required if you have injury to person or property as described under Section 4.

Thurgood Marshall:

In this case if they had not said this is union country or if they had not said anything and they just beat him up, would you be here?

Robert Q. Keith:

It would be a much more difficult case.

Thurgood Marshall:

Would you be here?

I mean, do you think so?

Do you think you would have gotten a judgment below?

Robert Q. Keith:

Not without showing that there was, in fact, this animus.

I may have been able to do so circumstantially.

But–

Byron R. White:

Do you think this is the theory of the Court of Appeals that you are pushing?

Robert Q. Keith:

–No, sir.

I do not.

The Court–

Byron R. White:

Are you defending the judgment of the Court of Appeals?

Robert Q. Keith:

–We do not have to go that far.

Byron R. White:

So your answer is no?

Robert Q. Keith:

That is basically correct.

If this Court should hold that Section 5 of the Fourteenth Amendment grants this power to Congress, then the Court of Appeals judgment is correct on that basis.

Byron R. White:

You do not say they are wrong.

You just do not want to defend it.

Robert Q. Keith:

We do not have to go that far.

That is a heavier load to carry than we need to carry to prevail in this particular case.

Byron R. White:

Did you present this narrower ground to the Court of Appeals?

Robert Q. Keith:

No, sir.

Robert Q. Keith:

We did not.

We submitted the larger view to the Court of Appeals.

Thurgood Marshall:

If you do not want to defend the court below, do you want us to?

Well who is here defending them?

Robert Q. Keith:

Well, I am here defending them, Your Honor, but I say that–

Thurgood Marshall:

I thought you were.

Robert Q. Keith:

–We can affirm my case without going as far as we ask–

Thurgood Marshall:

I was trying to keep you from pulling the rug out from under yourself.

Robert Q. Keith:

–Thank you, sir.

Harry A. Blackmun:

Well, you certainly are defending the judgment below.

Robert Q. Keith:

That is correct, yes.

Harry A. Blackmun:

A little while ago you said you were not, but certainly the judgment below–

Robert Q. Keith:

Indeed, and that is the only difference that we have with the Court of Appeals is this–

William J. Brennan, Jr.:

–Why are you afraid of the Section 5 argument?

Robert Q. Keith:

–We did not think it was necessary–

William J. Brennan, Jr.:

There have been opinions of the Court that have addressed it, as you know.

Robert Q. Keith:

–We did not think it was necessary to make, Your Honor.

Byron R. White:

Well, it is not necessary to make it except that… where else did Congress get the authority to pass this law?

Robert Q. Keith:

That is probably the answer to my question, yes.

William J. Brennan, Jr.:

I still do not understand your concern.

There have been opinions that have addressed that question and have concluded that, indeed, Section 5 was the basis upon which the 1871 Act was adopted in United States v. Guest.

Robert Q. Keith:

Yes, sir.

William J. Brennan, Jr.:

There were six of us in that case that thought so.

Robert Q. Keith:

Yes, sir.

John Paul Stevens:

May I ask you once more.

I know you have covered it but I keep turning it over in my mind.

Define for me again the class at which the conspiratorial activity was directed.

Robert Q. Keith:

In the minds of the defendants and those whom they struck out against were a group of men associated at a particular work site who had chosen to–

John Paul Stevens:

Is it all of the employees of this particular employer?

Robert Q. Keith:

–Yes, sir.

John Paul Stevens:

That is the class.

Robert Q. Keith:

As it turned out there was also a subcontractor on the job who had been notified–

John Paul Stevens:

But you think that the employees of a particular employer satisfies the class concept in the class-based animus language?

Robert Q. Keith:

–Yes, sir, because they were associated as non-union workers exercising that right, not the right to work non-union but the right to associate.

They were at this place just as the Jewish people might be at the synagogue.

John Paul Stevens:

Do you think they were there because they wanted to be with other non-union people or because they wanted a job?

Robert Q. Keith:

Either way, they had the right to be there and to express themselves in that manner and they chose to do so.

Byron R. White:

I thought you said this group of people at this site had the right not just to associate, and maybe you are saying that, too, but they had the right to have personal security.

Robert Q. Keith:

They do.

Yes, sir.

One is equal protection.

One is privileges and immunities, yes.

They have both rights as federal citizens.

Have I answered your question?

Thank you, sir.

Warren E. Burger:

Do you have anything further, Mr. Gold?

Mr. Gold, you have two minutes.

Laurence Stephen Gold:

I have nothing further unless there are questions.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.