William Mitchell Opinion – Volume 6, No. 2, May 1964 Published by the Student Bar Association William Mitchell College of Law

Editor - Allan E. Mulligan

Technical Editor - Al Remmenga

News Editors - John McKendrick Carolyn Meyer

Alumni Editor - R. W. Ra.hn

Photography - Arthur Hager

Staff: James Bassett, Richard Chrysler, Ronald Erickson, Tom Foley, LeRoy Fossum, Jack Mitchell, Ken Mitchell, Gary Phleger, Rodney Simmer Wayne Snyder.

Dean Curtis Resigns; Joins Hastings Law Faculty By Tom Foley Image Photograph of Stephen Curtis

Stephen R. Curtis, Dean of the William Mitchell College of Law, will leave his position this summer to join the faculty of the Hastings College of the Law. San Francisco, California, where he will carry a full teaching load. Dean Curtis, 71, was invited to teach at Hastings in 1961, but declined at that time in order to further the program begun at William Mitchell.

Comprised of law professors over 65, the Hastings faculty presently includes such noteworthy' names as Everett Fraser, former dean of the University of Minnesota Law School. and William L. Prosser, former professor at the University of Minnesota and recently dean of the University of California Law School. Hastings is the oldest and also the largest day law school on the Pacific coast, having an enrollment of over 975 full-time students.

Dean Curtis takes with him a wealth of experience in both the academic and administrative aspects of teaching law. He graduated from the University of Chicago Law School and practiced law in that city for many years. For fifteen years he taught at John Marshall Law School on a part-time basis. In 1949, Dean Curtis assumed full-time duties as assistant dean and professor of law at John Marshall. Later, he went to Ohio Northern University as dean.

Since 1958, Dean Curtis has been at William Mitchell as dean and professor of law. For two year prior to that date, two divisions of William Mitchell had been operating separately under Dean John A. Burns. Then in 1958 the two division one in Minneapolis and the other in St. Paul, were moved to the new building. Among the first tasks facing the school administrators was the consolidation of the two teaching staffs, two student bodies, and two separate curriculums into one.

In the period since 1958 William Mitchell has seen the expansion of work in the field of Professional Responsibility and in Moot Court. New courses have been added in Antitrust Law, Comparative Law, Legal Accounting, Legal Drafting, Legal Writing, and Taxation of Trusts and Estates. Dean Curtis feels that William Mitchell presently possesses a strong faculty and sound curriculum, and has attained a good standing in the community and state, particularly among members of the legal profession. Still he feels that although it is an outstanding evening law school, it has not yet reached its peak in excellence.

Teaching has always been a primary interest to Dean Curtis, as is evidenced by his background. And while lie also finds administration both stimulating and enjoyable, he recognizes its pressures. This factor undoubtedly, influenced the Dean to accept the Hastings invitation when it was offered a second time.

Heidenreich Appointed Acting Dean Andrew N. Johnson, President of the William Mitchell College of Law Board of Trustees, announced last week the appointment of Douglas R. Heidenreich as Acting Dean of the College. Heidenreich is presently Assistant Dean and instructor in the Introduction to Law and Sales courses.

The appointment is scheduled to take effect on August 1st and will coincide with the effective date of the resignation of Dean Curtis, who will leave on that date to assume his position at Hastings College of the Law.

Heidenreich holds a B.A. degree from the University of Minnesota. He is a 1961 magna cum laude graduate of William Mitchell, ranking first in his class. From 1961 to 1963 he was associated with the Minneapolis law firm of Erickson, Popham, Haik and Schnobrich. He was appointed Assistant Dean and Assistant Professor in March of 1963.

$9448 Granted Scholarships Go to 24 Students by Lee L. Fossum

Total funds granted to students as scholarships for the 1963-64 school year were $9,448.00, increased from $6,750.00 last year. The faculty scholarship committee, meeting in January, elected the twenty- four recipients from applications submitted from all four classes. The steady growth in scholarship fund contributed by interested donors is a gratifying demonstration of public interest in William Mitchell College and the legal profession. Among the donors listed are: the Otto Bremer Foundation, Edward I. Cudahy Foundation. Margaret H. and James E. Kelley Foundation, P. W. Skogmo Foundation, Minnesota State Bar Foundation, Student Bar Association, Lawyers' Wives of Ramsey County William Mitchell Law Wives, Farmers Insurance Group, and numerous law firms and corporations.

All scholarships are awarded on the basis of law school scholastic performance and financial need. These criteria are applied without apportioning any specific number of scholarships to each class although some degree of preference is given to students above the first year. Amounts granted vary from about $100 to $600, on an individual basis as to need or specified by the donor. Students interested in applying for scholarships for the next year are encouraged to file applications with the administration office at any time prior to October 1964. It is hoped that the scholarship program will be supplemented with a student loan fund. possibly next fall.

The following students received scholarships this year:

Walter Anastas, Richard D. Arvold, John E. Brandt, Robert F. Collins, Alan W. Falconer, Joseph E. Flynn, Jr., Charles R. Hall, Robert E. Halva, Floyd A. Hillstrom, Rodney M. Hynes, Ronald F. Johnson, Frederick W. Keiser, George M. Kimball. Richard H. Knutson, Thomas R. Lacy, James S. Lane III, Richard J. Langlais, Louis W. Larson, Robert E. Mathias, Thomas J. McLeod, Allan E. Mulligan, Richard F. Nitz, Gary L. Phleger, and Robert W. Rahn.

Judge Burger to Address Grads; Mitchell Portrait to Be Dedicated by Carolyn Meyer

The Honorable Warren E. Burger, of the Washington, D.C. Circuit Court of Appeals, will be the speaker at the 1964 William Mitchell commencement to be held at 8: 00 P.M. on June 9. At that time, Judge Burger will be awarded an honorary Doctor of Law degree by the Board of Trustees of William Mitchell.

Seventy-two seniors are scheduled to receive Bachelor of Laws degrees at the College of St. Thomas Armory, the site of the commencement exercises.

Also during the ceremony a portrait of former Minnesota Supreme Court Justice William Mitchell for whom the college was named, will be presented to the school ·by members of the Mitchell family. The portrait will be placed on display in the law school.

Judge Burger, a native of St. Paul, attended the University of Minnesota and the St. Paul College of Law where he was graduated magna. Cum laude in 1931 with a degree of LL.B. He also received the Phi Beta Gamma, award for scholarship. In 1931 he became a member of the faculty of the law college, first teaching Contracts and later teaching Trusts.

Upon admission to the Minnesota bar, he became associated with the firm of Boyesen, Otis, Brill & Faricy. In 1935 he became a partner of the firm and continued to practice in St. Paul until 1953.

Included in his Minnesota public activities were membership in the Governor's Emergency War Labor Board, the Governor's Interracial Commission, and the Council of Human Relations, of which he was president. He has also been a trustee of Macalester College, and of the governing board of the Mayo Foundation.

In 1953 he was appointed Assistant Attorney General by President Eisenhower and served as head of the Civil Division handling the government's civil litigation in all the federal courts and special courts in the federal system.

In 1954 Judge Burger served as a member and legal adviser to the United States delegation to the International Labor Conference at Geneva. He has written articles for various law journals, chiefly on subjects relating to judicial administration, public defender problems and postgraduate legal education, and is active in the work of the Institute of Judicial Administration. He is a member of the American Bar Association, Minnesota Bar Association, Federal Bar Association, International Bar Association, InterAmerican Bar Association, the American Society of International Law and the American Judicature Society.

Judge Burger resigned as Assistant Attorney General early in 1955 to return to his law firm in St. Paul and shortly thereafter was appointed to the Court of Appeals. His contacts with law schools have been resumed since his appointment to the bench, and he has lectured at Duke University Law School, New York University Law School, University of Pennsylvania Law School, American University Law School, and at The Hague Academy of International Law in Holland. Since then the Judge has taken postgraduate work at New York University and has attended a summer session at The Hague Academy of International Law. Image Photograph of Warren Burger

Potential candidates for degrees this June are:

Walter Anastas, Richard D. Arvold, Walter M. Baker, Charles F. Bisanz, Arthur F. Blaufuss, Glenn W. Bones, Arthur H. Braun, John O. Brunelle, Joseph M. Buchmeier, WiIliam B. Christensen, Neil P. Convery, Eugene J. Crosby, Rex J. David, Jr., Robert C. DeVeau, Robert W. Doyle, Robert T. Edell, Peter S. Ekholm, Ronald R. Frauenshuh, James D. Gibbs, Robert D. Grashuis, James R. Hall, Wayne A. Hergott, Arthur J. Heuer, Dennis J. Holisak, Rodney M. Hynes, James B. Jenkins, John R. Kelley, William R. Kresl, Paul A. Kyyhkyynen, Allan W. Lamkin, David P. Langevin, Richard J. Langlais, Donald L. Larson, Louis W. Larson, Patrick J. Leary, John M. Leibel, Peter Lopez, Jr.

Ronald J. McGraw, Edward N. Mansur, Daniel J. Meaney, Jr., Kenneth A. Mitchell, Thomas M. Mooney, Carl D. Nelson, William J. Newpower, Richard F. Nitz, David B. Orfield, Eugene A. Parsons, Donald G. Paterick, Warren E. Peterson, Michael J. Pisansky, Salvator Primoli, Ronald T. Reiling, Joseph H. Rivard, Kenneth J. Rohleder, Robert L. Sandberg, Roger G. Scherer, John A. Studer, Lawrence H. Sullivan, John D. Tierney, Michael C. Tierney, James R. Tschida, Celestine E. Von Feldt, John E. Walsh, John J. Waters, Orville L. Weiszhaar, Paul A. Welter, John J. Weyrens, Perry L. Williams, Joseph D. Zwak.

1964 graduates who completed their studies in January are Paul L. Ballard, Gerald G. Dederick, and Donald F. Giblin.

EDITORIALS John B. Sanborn Marc Antony protested that men’s achievements often disappeared with their bones. Lest that be the fate of John Sanborn, we must speak of him here.

Man has always struggled that his stamp, his mark, might somehow survive his flesh. Most of us are limited in this attempt. We produce our sons and daughters, but our imprint upon them is soon clouded by their own personalities. Others leave fortunes, but one Treasury note looks pretty much the same as another. The law, however, operates so that a judge's life is recorded forever. Most men obey the law; some men know the law. But John Sanborn wrote the law, and in that verb lies the method of his immortality. Our doctrine of stare decisis creates a staggering responsibility upon the appellate judge. Each choice of word, each turn of phrase must be chosen with great regard to its permanence. Each case decided is of potentially enormous effect upon then unknown litigation. Former Justice Whittaker’s tribute to Judge Sanborn, published on page seven of this issue, suggests the quality of this heritage.

Judge Sanborn's bond to William Mitchell was strong and deep. As president and trustee he nurtured much of the integrity which this institution now enjoys. Without doubt, his contributions of rare books and appellate briefs will long survive as tangible evidence of his solicitude for the college. As in so many instances, however, his greatest contributions to students, to the law, and to society are intangible. His legal perception is preserved in his opinions; his character is preserved in this institution. His mark is truly indelible.

John Benjamin Sanborn, R.I.P.

A. E. M.

The Indigent There has been a great insurgence of interest in the indigent since the decision by the Supreme Court in Gideon v. Wainwright, 372 U.S. 335 (1963). Gideon, a prisoner and unable to afford counsel. wrote a letter to the Supreme Court which led to a retrial with competent defense counsel and his subsequent freedom. Had he not written the letter and had the Supreme Court not reviewed his crude petition, he would still be in jail today. Also, had he been able to afford competent defense counsel from the onset of the proceedings, his imprisonment (or freedom) would not have rested on such a thread of chance.

The defense of indigents must not be overlooked or cast aside. The most widely accepted means of combating the problem are (1) assigned counsel and (2) organized defender systems. However, either system gives rise to such issues as the scope of legal obligation to provide counsel, when counsel should be provided the availability of defense lawyers, the obtaining of funds to support the system, and getting public support. These are but a few of the factors that must be considered. The actual system to be employed as the solution will obviously not be easily determined, but nevertheless, a solution must be found.

Merely because the solution is not easily determined cannot be grounds for non-action. The law is, by necessity, an organized system of jurisprudence by which society governs itself. It progresses as society progresses. This principle enables us to maintain a fair and orderly system of administering justice.

D.W.S.

Better Public Image of Night Law Schools Sought by SBA President by Dick Langlais

The hackneyed expression "a man is known by the company he keeps" has significant application to a law student. We generally surmise that most eastern law school graduates have less difficulty in obtaining reasonably remunerative positions upon graduation than do mid-western law students, and still less difficulty than an evening law student from any area. A significant portion of the public, not to mention the Bench and the Bar, somehow feel that a legal education from an evening law school is to be considered as less meritorious than a similar education from a day law school. Evening law schools are frequently characterized as non-professional, profit-making trade schools. These erroneous opinions of evening law schools necessarily result in like erroneous opinions of the students and graduates from these schools.

Unfortunately these opinions, at least to some degree, are due to the failure of the evening schools themselves to present an image to the public that accurately portrays the true character and purpose of evening law schools.

At the American Law Student Association Convention in Chicago last August, I was privileged to meet students from many evening law schools, almost all of whom expressed the belief that such opinions are all too prevalent. Out of concern for the problem, it was proposed that an Evening Law School Committee of ALSA be formed for the purpose of studying the operations and problems of evening law schools, particularly with reference to forming a more favorable and accurate public image of such schools.

This committee has now been formed, and its activities begun. William Mitchell has been requested to participate, and I am sure that we will all help in whatever way we can.

One task to be undertaken has been delegated to a sub-committee, whose job it will be to apprise the public of the real character of an evening law school, and the generally excellent attributes and capabilities of its students upon graduation. Once the true facts are in the open, this job should be relatively easy.

Certainly one of these facts, well known to anyone who has ever gone through the long years in an evening school, is that such a student is generally more desirous than his counterpart in day school of obtaining a legal education. Unquestionably, the route for an evening student is more difficult, more demanding, and more concentrated. It soon discourages any student who may tend to be apathetic, indifferent, or interested solely in the social climate of a professional school.

Furthermore, the evening law student necessarily learns early how to program his time to meet the arduous requirements of preparing for his classes, while at the same time trying to improve the skills demanded of him in his regular employment. This knowledge of the economics of time will later prove very fruitful in developing a successful law practice. Image Photograph of Dick Langlais

An evening law graduate is generally more mature than his day school brethren because of his age and his corresponding advanced experience and responsibility in the domestic, business, and professional worlds. Upon graduation, he is probably 30 years of age, married, and has four or more years of active participation in a related legal field, or in a field which will be of substantial benefit to him in his legal career. Every graduating class at an evening law school can boast members who are claim adjusters, law clerks, legal investigators, engineers, accountants, and tax practitioners. At one time, such experience in a related legal field was the sole prerequisite to admission to the Bar. Now coupled with a strong academic education in law, this experience is greatly enriched.

Finally, the professional atmosphere and competent instruction at an evening law school compares favorably with a day law school. All accredited evening schools maintain full-time faculties. In many cases, the night school is merely an extension or division of the day school, with the result that the courses and professors are interchangeable. The members of the faculty at William Mitchell have enviable reputations in the legal profession, both in active practice and in academic circles.

The members of the Evening Law School Committee of ALSA are anxious to commence work in the public relations area. It is one of the many areas where your Student Bar Association may meet its responsibility in providing for the needs of the student and the school.

Alumni Loan Fund to Be Available in Fall by Jack A. Mitchell

Arrangements are now being made with the First National Bank of St. Paul which will make available to William Mitchell students a loan fund of $100,000.00.

Loans from this fund, at a preferential interest rate, will be available beginning with the fall semester of 1964 to all students having the approval of the Dean. Amounts will be available up to $600 per year and a cumulative 4-year maximum of $2,000.

Approval of loans will be based upon a careful analysis of the scholastic prospects of each applicant, as well as need. Approval may be given to first year and upper-class students alike.

A student receiving a loan under this program will be required to pay nothing until six months after he has been graduated. At that time, repayment may be arranged for any period of up to four years.

In order that this liberal program may be arranged, it will be necessary for the school to place a guarantee fund of $20,000.00 on deposit with the Bank. The sole source of this fund will be a subscription of members of the Alumni Association. The results thus far in the alumni drive for funds give assurance that the program will be in effect by next fall.

The Student Loan Fund might be compared to similar arrangements made by the Law School at the University of Minnesota. There, the guarantee fund is but $3,000.00. Since the guarantee fund is small, loans under that program are available only to upperclassmen of high scholastic standing.

Considerable interest was shown last fall in a poll of first, second and third year students and it is felt that equal interest will be shown next year when it becomes apparent to William Mitchell students that they may avail themselves of loans which, in the absence of other collateral, would be difficult to negotiate.

DICTA BY THE DEAN: Curtis Sums Up Six Years After six busy years one cannot contemplate walking away from as engrossing a task as the operation. of the William Mitchell College of Law has proved to be without some wrenching of the emotions and even of the heart. William Mitchell has so dominated my life and Mrs. Curtis’s that when we tum our eyes to the west about August first, the departure from "our” school and the countless friends we have made in Minnesota will be accompanied by no little sadness. We have been aware of this since the invitation from the Hastings College of the Law (the second 'the' is actually a part of the corporate name) first arrived. We have finally concluded, however, that, despite the fact that I have thus far - and one of my frailties is that I keep forgetting how far that is - been fortunate enough to keep a step or two ahead of many of the impairments of age I cannot expect to do so forever; and it seems discreet to accept the opportunity to step out from under the pressures of deaning and resume the busy and responsible, but perhaps less wearing, activities of teaching. And I have to confess, of course, that the decision was made much easier because of my knowledge of the distinction of Hastings and the group of most interesting men in its "Over 65 Club." But there are too many things still to be done to spend more time and space on this subject.

Assistant Dean Heidenreich has been kept busy with applications for admission for next fall’s classes. For the last two months they have been running sixty per cent ahead of a year ago.

The drive among our alumni for contributions to a guaranty fund that will make possible a much needed Student Loan program has produced, after but one mailing, more than twenty per cent of the desired amount. The gifts have included two of $1000 each and several of $100 or more. This is grand confirmation of our conviction that the alumni of this law school will contribute generously and gladly if given the opportunity. We, are now certain that the Student Loan program will be in operation this summer.

Former Chief Justice Roger L. Dell '20, and James E. Kelley, '17, began a year ago to develop a plan to pay off the balance of our building mortgage. Judge Dell informs me that he expects the plan to produce results within a few weeks. This is one of our most vital objectives that must and can be attained and in short order. I still hope to smell the smoke of that mortgage before I leave.

Improvements in the physical plant expected to be accomplished during the summer include (1) paneling of the downstairs courtroom together with elevating the bench and jury box, and installing a railing around the jury box and witness stand; (2) removing the worn carpet in the lounge and replacing it with tile, and (3) decorating in various parts of the building.

The opinion is widespread in the legal profession that law students need more training in the mechanics of the practice than most law schools have been able to supply. The few states that have tried apprenticeship programs have found them ineffective. William Mitchell has probably done more than most schools through its courses in drafting of legal documents, writing of memoranda and briefs and its extensive Moot Court program; but it is realized that much more is needed. Consideration is being given to inaugurating at our school a post-graduation, post-bar examination, pre-practice course that would give more intensive and extensive preparation for handling the varied problems in practice that are encountered by the new lawyer. The course would be open to graduates of other law schools as well as our own, would meet four or five evenings each week for five, six or seven weeks between the end of the July bar examination and the beginning of our school classes in mid-September. The aim would be to give the student both instruction and practice in doing many things. Subjects would include drafting many varieties of legal instruments; preparing papers for and handling guardianship, adoption, change of name attachment, garnishment, replevin unlawful detainer, mechanics' liens: foreclosing mortgages; probate of estates; divorce; examining abstracts and clearing of titles; traffic court and municipal court practice; workmen’s compensation; professional responsibility; law office management; fees for services.

We would hope to arrange for visits to courthouse offices and an introduction to their procedures. Instruction would be by faculty members, practicing lawyers, judges and government administrator. Wisconsin has a system of required apprenticeship but permits the taking, as an alternative, of a course similar to the program we are considering.

The Commencement program for the evening of June 9 will be interesting and notable. With men taking part such as United States Circuit Judges Burger and Blackmun, who grew up together in St. Paul, and Mr. William Mitchell of Washington, who is the grandson of the famous justice after whom our school was named, this will be an occasion to be remembered.

Our Board of Trustees is making a careful canvass in its search for a dean. One very fortunate development has occurred in filling the place of office manager and secretary, which is being vacated by Mrs. Curtis. When we asked Miss Greiner, the very efficient Managing Editor of the Bench and Bar, if she could suggest someone, her response was that she might be interested herself. We are delighted and relieved to announce that Miss Greiner will join the school's staff as soon as the State Bar convention is over in June.

To the many alumni and other friends whom I may not be able to see before leaving I express a most sincere thank you for your many courtesies and a heartfelt au revoir.

The Uncertain Status of Apportionment: Baker v. Carr by Robert F. Collins

[This article is followed by Footnotes] About the Author Image Photograph of Robert Collins

Robert Collins, 24, is a third year student at William Mitchell. He holds a B.A. degree in political science and economics from the University of Minnesota and is presently employed as a law clerk by the firm of Erickson, Popham, Haik and Schnobrich In Minneapolis. He is married, has two children, and is a Minneapolis resident.

All so-called 'apportionment cases ' scrutinize one characteristic fact situation: population disparities among state legislative districts.1 Whether population disparities are effected by the terms of an apportionment law, constitutional2 or statutory,3 or by the action of unconscionable and unscrupulous law makers,4 the result is nonetheless the same. The most populous districts have the least legislative Representation.

In his prosecution of an apportionment case, the typical plaintiff alleges that this result constitutes invidious discrimination in violation of his rights under the equal protection clause. He brings a class action against various state election officials5 under the Civil Rights Act6 before a three-judge federal district court.7 He seeks a declaratory judgment invalidating the present apportionment scheme, an injunction restraining officials from holding further elections thereunder, and he demands reapportionment by judicial decree.

If plaintiff is pessimistic about his chances of ultimately securing the apportionment he wants,8 he is reasonably certain (1) that his claim is within the jurisdiction of the court, (2) that he has standing to sue and (3) that his complaint presents a justiciable controversy. So held the Supreme Court in Baker v. Carr,9 on March 26, 1962.

One student observed that "it is hard to recall a decision in modern history which has had such an immediate and significant effect on the practical course of events.”10 By November 1, 1962, apportionment cases were underway in no less than 30 states.11 By December, 1963, the number had grown to 42.12

Baker v. Carr arose in Tennessee where eligible voters had quadrupled in number over the last 60 years, and substantial redistribution of the enlarged population currently permitted 37% of the voters to elect 60% of the Senator and 40% to elect almost two-thirds of the members of the House. Although Tennessee’s constitution required decennial reapportionment, and despite several non-judicial attempts to force it, the state legislature had failed to reapportion itself since 1901. Upon these allegations the Supreme Court held plaintiff was entitled to a trial, and if proven, he would be granted a remedy. The cause of action was deemed justiciable because “judicially discoverable and manageable standards”13 were not lacking. The court did not purport to say what these judicial standards were however, nor did it discuss how the cause of action should be measured and implemented by the lower court. Justice Brennan, writing for a 6-2majority, dismissed the question with one sentence:

Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination. reflects no policy, but simply arbitrary and capricious action.14

Today, what may have been 'well developed and familiar" in March, 1962, is still a recognized mystery15 at non-United States Supreme Court levels. The various federal district and state supreme courts were given the opportunity to find standards and they have proceeded to discover and apply a multitude of them. Eighteen of these lower court decisions, many of them irreconcilable, are now noted on the Supreme Court docket.16 The Court must finally answer the question it avoided in Baker v. Carr; within a matter of months, it will be forced to define and delineate a number of acceptable and non-acceptable judicial standards for testing challenged state legislative apportionments under the equal protection clause.

The purpose of this paper is to consider what those standards might be. Hints from the Supreme Court As indicated, Justice Brennan spent one sentence on a discussion of applicable criteria. This one sentence statement, however, provides a helpful starting point. First, the cause of action presupposes a “discrimination." If all districts were apportioned with mathematical precision, if no one were denied a full vote in equality with any other voter, there would be no basis for a claim to reapportion. Secondly, it is a discrimination which “reflects no policy, but simply arbitrary and capricious action” that is unconstitutional. This suggests, conversely, that a discrimination which reflects some policy, some rational, non-arbitrary, non-capricious policy, might be condoned. Furthermore, if arbitrariness and capriciousness present questions of degree, mathematical exactitude is not necessary. Thirdly the court's determination must be made on the "particular facts". Presumably, because of geographic. historical and economic dissimilarities, any given apportionment situation will differ from every other and each will require individual attention and analysis.

Justice Brennan characterized the particular facts of Baker v. Carr as follows:

"[ Appellants'] constitutional claim is, in substance that the 1901 statute constitutes arbitrary and capricious state action, offensive to the Fourteenth Amendment in its irrational disregard of the standard of apportionment prescribed by the state's constitution or of any standard, effecting a gross disproportion of representation to voting population. The injury which appellants assert is that this classification disfavors the voters in the counties in which they reside, placing them in a position of constitutionally unjustifiable inequality vis-à-vis voters in irrationally favored counties."17

Among the "gross disproportions" alleged, a single vote in Moore County was supposed to have been worth 19 votes in Hamilton County, and one vote in Stewart or Chester County worth 8 times a vote in Shelby or Knox County.

If these facts are true, as the Court assumes, and if they state a claim upon which relief may be granted, as the Court holds, then evidence of population ratios is extremely important. If, by reciting the gist of plaintiffs' claim and by affirming its justiciability, the Court described an unconstitutional situation, then perhaps the Court ruled sub silentio that ratios of 19 to 1 and 8 to 1 in and of themselves violated the standards of the equal protection clause. Rightly or wrongly, this inference is the closest thing to an objective standard that can be extracted from the opinion.18

Justice Douglas modifies "discrimination" by the term “invidious" in his concurring opinion.19 Although not once mentioned by the majority, “invidious discrimination" has since served as the ultimate test in all lower court decisions.

Justice Clark, on his part, said that "No one ... contends that mathematical equality among the voters is required by the equal protection clause. But certainly there must be some rational design to a state's districting."20 He further characterized the Tennessee apportionment as "loco"21 and as a "crazy quilt without rational basis.”22

On April 23, 1962, the Court, per curiam, without elaboration, vacated a judgment of the Michigan Supreme Court and remanded for further consideration in the light of Baker v. Carr. The facts of the case23 were similar to Baker but it had been decided on the pleadings before Baker was decided. By avoiding a discussion of the merits in successive decisions, the Court dispelled any doubts that the lower courts should have the first opportunity to formulate applicable standards.

In June 1962, the Court reached the same conclusion with almost the same dearth of discussion, in W.M.C.A. v. Simon.24 It did, however, recapitulate the Baker holding. "[A] justiciable federal constitutional cause of action is stated by a claim of arbitrary impairment of votes by means of invidiously discriminatory geographic classification."25 This language has significance only in that it officially, incorporates "invidious" into the ultimate test and seems to recognize a degree of discrimination which is constitutionally permissible. In March, 1963, the Court decided Gray v. Sanders.26 Georgia’s Democratic Party employed a county unit system as a basis for counting votes in its primary for the nominations of statewide officers and U.S. Senators. One third of the total population of the state resided in a majority of the least populous voting districts, and thus was able to elect It nominees despite the wishes of the other two thirds. Baker v. Carr was cited upon the issues of the jurisdiction, justiciable controversy and standing to sue. But, “unlike Baker v. Carr: [the case] did not involve a question of the degree to which the equal protection clause limits the authority of a state legislature in designing geographical districts from which representations are chosen ...”27 Nor did "it present the question, inherent in the bicameral form of our Federal Government, whether a state may have one house chosen without regard to population.28 The holding was limited to discriminations within a single geographical unit - in this case, the state. "Once [it]... is designated, all who participate in the election are to have an equal vote..."29 Or, as Justice Stewart said concurring, "within a given constituency there can be room for but a single constitutional rule - one man one vote."30

The Court did not analogize Gray's county unit system with legislative districts. It might have held that the distinction was without substance, and that legislatures as well as governors and senators should be elected by voters who stand in full equality with one another. It might have taken the opportunity to proclaim that the “one man-one vote", or population, principle would thereafter apply in both situations.

The very fact th.at it did not equate the two, however, may have significance. The constitutional authority of a state to design geographical districts from which representative are chosen presents a “question of degree.” This indicates that legislative apportionment may effect numerical disparities up to a point. Moreover, if the Court is giving serious consideration to the validity of the “federal principle" applied to state legislatures, it is necessarily debating whether Baker v. Carr should have any applicability to one branch of the legislature so long as the other is apportioned without invidious discrimination.

On February 17, 1964 in Wesberry v. Sanders,31 the Court startled the nation with the latest of its pronouncements on apportionment. ' [The] command of Article 1, § 2 that representatives be chosen 'by the people of the several states' means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's."32 The equal protection clause does not form any basis for the decision, nor does the majority discuss rationality as a judicial standard. Baker v. Carr was cited on the question of justiciability, but further reference to it was omitted. If anything pertinent to the problem of state legislative apportionment can be implied from the case it is this: Assuming the "federal principle” constitutes a valid judicial criterion, and is adopted by a state as its method of apportionment. when one branch of the legislature is classified geographically without semblance of numerical equality, then the other branch should logically be held to a strict adherence to the one man vote principle. Like the United States Congress there should be no discrimination in at least one branch to the extent that mathematical precision reasonably feasible. Mere non-invidious discrimination will not suffice.

Baker v. Carr was mentioned in one other Supreme Court decision, concerning the issue of standing to sue. Aside from these five above mentioned cases, its meaning and portent have never been discussed or interpreted by its authors. The lower courts have been left to formulate their own guidelines. Standard and Remedies Set by the Lower Courts 1. "Invidious discrimination, "rationality" and plaintiff's burden of proof.

There seems to be common recognition among courts of an initial presumption in favor of the constitutionality of the apportionment law in question. The plaintiff, in Thigpen v. Meyers,33 for example, had the burden of rebutting such a presumption by producing evidence of sufficient magnitude to make out a prima facie case of invidious discrimination. Having done so, defendants were obliged to show that there existed some rational basis for the disparities. Invidious discrimination may be established by, statistics alone: how many people reside in the various districts. A "rational basis" may be established by economic, geographical, historical factors, and so on.

While the problem is not always described in terms of respective burdens of proof, this general approach is often taken by the courts. The greater the deviation from the population principle, the more compelling must be the reasons for such deviation. Invidious discrimination is always the ultimate test; but some degree of discrimination or inequality can be explained away by a rational state policy. What deviations are invidious and what policies are rational, of course, depends upon what the judge believes to be a violation of equal protection of the laws.

2. "The federal principle."

The "federal principle" merely illustrates the bicameral division of the United States Congress. It is also a rationalization for discrimination. At the Constitutional Convention of 1787, some delegates demanded that representatives to the federal legislature be elected by the people according to their numbers. "No matter where he lived, each voter should have an equal voice with every other..."34 Some delegates objected that if population were the only basis of representation certain populous states could elect sufficient representatives to wield overwhelming power in the government. These delegates feared majority subjugation of the minority. The dispute was resolved by the Great Compromise and, ever since, United States Senators have been elected according to geography and Representatives according to population.

Many states have apparently adopted the principle in their own apportionment schemes, and many lower courts have given it judicial sanction. One argument in favor of it proceeds on a “what’s sauce for the goose is sauce for the gander' theory.35 If geographic classification is rational for the Federal government, it is also rational for the State. This argument apparently ignores the historical context out of which the principle arose. It exists in the United States because certain delegates threatened to withdraw from the Constitutional Convention if they did not get their way. Philosophically speaking, it may be highly irrational, but it is with us nevertheless.

Moreover, Senators represent distinct, in some respects, sovereign political units whose powers are guaranteed by the Federal Constitution. A county, on the other hand. is usually considered a governmental agency a convenient political subdivision, ordinarily "possessing no power and subject to no duty not originating from the law by which it is created...''36 What is "good” for the nation's citizenry as a whole living under a federal form of government pose far different economic, political and legal problems than what is "good" for the citizenry of an individual state.

Lastly, questions of apportionment are resolved in the light of the equal protection clause. This clause does not refer to bicameralism. Its language does not commend the federal example. Nothing about it suggests that its interpreters, the judiciary, can or should distinguish between an upper and a lower house.

A much better argument in favor of the federal principle emphasizes the necessity of preventing majority subjugation of minority interests. Supporters of this argument do not rely on the plain fact of federal bicameralism; they, instead, expound its underlying rationalization.

Consider two cases. In Germano v. Kerner,37 the lower house of the Illinois legislature was apportioned according to population, the upper house, or Senate, on a basis that attempted to equalize the imbalance between rural and urban voters. The overall average population of senatorial districts was 174,000, the average in Chicago, 197,000, and in the remainder of Cook County excluding Chicago, 263,000. 29% of the voters could elect a senate majority. The Court approved the scheme, stating "this plan does in fact permit a reasonable, not a capricious or absurd, check upon the political power of the largely populated urban area."38

In Nolan v. Rhodes,39 each of Ohio's 88 counties was guaranteed at least one representative in the general assembly. The other branch of the legislature was apportioned according to population. The Court held, "The system is one of checks and balances designed to protect minority as well as majority interests, but with neither in control. Such an apportionment in our judgment, cannot be said to be irrational."40

The judicial standard thus formulated follows as a conclusion from certain presumed premises. First, there does exist within the states a clear dichotomy of economic interests, i.e., industry vs. agriculture. Secondly, the majority group, representing one economic interest, will not do political justice to the minority. Thirdly, use of the bicameral system will adequately serve and safeguard majority interests as well as protect the minority.

To the extent that these premises are valid, the argument carries much weight. The criticism, of course, is that the premises are factually incorrect. Furthermore, in the final analysis, any government is only as good as its individual personnel. A corrupt bunch of lawmakers can do the same harm in one situation as in the other. And finally a system which permits minority veto accomplishes invidious discrimination just as effectively as an apportionment which creates numerical disparities of 19 and 8 to 1. In either case, the voter is denied the full exercise of his franchise.

Consider, also, the implications of Wesberry v. Sanders,41 the congressional reapportionment case. If a state chooses to adopt the theory of the federal principle, it must likewise adopt its practical requirement - strict numerical equality among districts of at least one branch of the legislature. Quaere however, with respect to the Senate side of the legislature: is a minimum of one or two representatives per county, whatever its size, population or economic peculiarities, rational apportionment?

3. The "practical equality standard" and geographical, economic and historical rationalizations.

The "practical equality standard" is synonymous with "the population principle." It is the antithesis of both invidious and rational discrimination. It requires apportionment on the basis of numbers of qualified voters without regard to any other factor, and it does not demand mathematical precision because that is impossible. In Moss v. Burkhart,42 Oklahoma's representative districts varied in population from 11,700 to 62,800 and senate districts from 24,400 to 115,300. 29% of the voters could elect a house majority. The Court decreed reapportionment "as near as may he to the equal number of inhabitants in each district"43 and thereby applied the practical equality standard to both branches of the state legislature.

In Sincock v. Duffy,44 Delaware's senatorial districts ranged from 4,000 persons to approximately 64,000 or a ratio of 16 to 1. 31 % of the voters could elect 2/3 of the senate, 28% were able to elect a majority of the house. The Court held that one of the two branches "must be apportioned on an equal population basis as nearly as this can be accomplished .... "45 It also applied the practical equality standard.

If most other courts reject the practical equality standard, either as to one or both legislative branches, they usually utilize it by way of introduction and comparison. It is the touchstone for measuring deviations.

Lisco v. Love46 discussed, rather comprehensively, geographic and economic factors as rational bases for deviations. The Court analyzed the Western, Eastern, South Central and East slope regions of Colorado in terms of elevation, temperature, water supply, available railroads and highways, manufacturing and agricultural production, mining, tourism and population. These "heterogenous characteristics," the court said, "justify geographical districting... In no other way may representation be afforded to insular minorities."47

But, geographic and economic factors are not plausible in and of themselves. They must first be crystallized into the same protection of the minority argument offered in support of the federal principle. The argument has certain rational aspects as suggested above. But, again, as a logical conclusion, it rests on disputable premises. To the extent that substantial and fiercely antagonistic economic interests do not exist within a state, there cannot be any substantial disparity among voting interests. Furthermore, democratic government operates by majority decision. To over-protect insular minorities is to hamstring the majority, and thus the entire legislative process.

The protagonists of the historical justification48 find support in a long series of constitutional or statutory reenactments. Where the basic pattern of apportionment has remained unchanged for numerous decades, as it often has, how can it be arbitrary or capricious state policy? This argument uses semantics to avoid the true test-does the apportionment invidiously discriminate among voters? If it does, then history, custom and tradition are immaterial. History may explain disparities; it may have created them. It certainly cannot justify them.

4. The procedural standard.

In Nolan v. Rhodes,49 the court said:

Whenever the people of Ohio desire to change their constitution the way is wide open for them to do it... [The fact that they have not indicates] rather clearly that the people in the counties in which plaintiffs reside . . . [do] not want any tampering with their constitution.50

This statement was more than an offshoot of the historical justification. The court seems to be saying that it will determine the validity of the alleged malapportionment in the light of available political remedies. If plaintiffs and others similarly situated feel they are presently suffering a wrong, and if non- judicial, procedural recourse is available, let them seek it. Plaintiffs could have accomplished reapportionment either by initiative petition, requiring a majority of the voters, or by constitutional convention, which a majority of the people had an automatic right to call every twenty years. The fact that reapportionment had not been accomplished by these procedural means was apparently conclusive as to plaintiffs' cause of action.

The court in Lisco v. Love51 took a much similar approach. In plaintiffs' first action,52 decided August 10, 1962, invidious discrimination was found where 29.8% of the voters could elect a majority of the Senate, and 32.1 % a majority of the House. Final adjudication of the matter was postponed, however, pending voter approval of certain constitutional reapportionment measures to be submitted at the ensuing general election. House Districts were to be apportioned on a strict population basis, and voters had the choice of apportioning Senate Districts according to population, or on an adjusted basis which would recognize a number of rational deviations. Voters approved the House measure, which was not contested in the second action, but they chose the adjusted method of Senate apportionment which still permitted 36.28% of the people to elect a majority. The issue in the second action, decided almost a year later, was the validity of this adjusted method of Senate apportionment. The court upheld it stating, "We believe that no constitutional question arises as to the actual, substantive nature of apportionment if the popular will has expressed itself."53 “If the true test is the denial of equal right to due process, we face the traditional and recognized criteria of equal protection. These are arbitrariness, discrimination, and lack of rationality. The actions of the electorate are material to the application of the criteria."54 (Emphasis added.)

Lisco, then, suggests a variation of the procedural standard announced in Nolan. The latter decision asks: Can the people express themselves?; the former: Have the people expressed themselves? One eminent author states that some sort of procedural standard is the only appropriate standard.55 Almost all other cases which deny reapportionment find that political remedies, such as the initiative or referendum, are readily available. Baker v. Carr itself may be authority for validity of the standard.56

Just how valid this standard may be, however, is subject to serious scrutiny. First, it should be remembered that Nolan also approved a system which sought to protect minority interests. Protection of minority interests is the underlying rationalization for the deviations in Lisco. If invidious discrimination exists among legislative districts, and if the majority can take procedural steps to perpetuate such discrimination, what minority protection is thereby accomplished. Suppose in an extreme example the entire non-Twin City population of Minnesota voted to allocate 90% of the Senate seats to rural districts. Would that be rational apportionment? Or, suppose voters vote "No," to reapportionment because they do not approve the proposed method, or simply because they do not understand it. Invidious discrimination may be perpetuated by mistake as well as by conscious action.

Secondly, if the right to equal protection of the laws is derived from the United States Constitution, as the courts must admit, then a fortiori it is judicially guaranteed and cannot be made to depend on the will of the majority. The right to equal protection of the laws is akin to the rights of freedom of religion and freedom of speech. Whatever reasonable limitations may be imposed upon its exercise, its existence cannot be determined at the ballot box. For these reasons, judicial inquiry should never reach the issue of the availability of political remedies, nor should it be concerned with the fact that voters have recently approved or disapproved some constitutional amendment. With all due respect to the genius of federal district court and state supreme court judges, the so-called "procedural standard" does not belong in an apportionment case. 5. Remedies.

Once a court takes jurisdiction and adjudicates in plaintiff's favor, it must answer the further and fairly difficult question of which remedy, if any, should be granted. Various courts have reacted differently to this problem and, a might be expected, the decisions do not nearly reflect the full range of possibilities.

Every successful plaintiff, of course, obtains a declaratory judgment invalidating the present apportionment scheme. If the judgment is to have any practical effect, the court must also enjoin further elections under the law it declared invalid, and undertake in some fashion to effectuate a reapportionment which it considers constitutional.57

Legislative apportionment is traditionally a state's prerogative,58 so the courts have been quite willing to permit defendants an opportunity to accomplish reapportionment themselves provided they act within a stiipulated59 or reasonable60 period of time. Where it is apparent that defendants will not or cannot act, the court may grant reapportionment by judicial decree.61 Whether or not a Federal District Court is empowered to decree reapportionment, and, if so, what limitations attach to this power, are specific issues presently before the Supreme Court.62 To the extent that such positive remedies are unavailable, however, plaintiff's cause of action may be more illusory than real. The fact that the Supreme Court went as far as it did in Baker v. Carr hardly suggests that it will draw the line at mandatory injunctions.63 Conclusion Any attempt to anticipate any ordinary Supreme Court decision requires a curious admixture of reason precedent and educated speculation. Any attempt to project Baker v. Carr permits of little more than pure conjecture. The preceding discussion has been addressed to a surprisingly widespread and perplexing problem. According to recent statistics64 the representative majorities of the Upper Houses in 31 state legislatures are elected by less than 35% of the voters. The majorities in all but 10 Lower Houses are elected by 40% of the voters or less-mostly far less. Baker v. Carr struck the first blow at this problem, but its victim, invidious discrimination, will not be seriously disabled until the court becomes definitive in its delineation of judicial standards.

The standards must necessarily be broad and flexible, at least initially, for the subject matter to which they apply is human rights and the areas upon which they encroach are political in nature. Every commentator and every court decision,65 including Baker, either suggests or holds that deviations from the population principle may be permitted in at least one of the two legislative branches. It is here submitted that this is a proper standard, that one house must be apportioned after the federal principle, "as near as may be" to equal population, and that if the other is not so apportioned, the state's economy must be characterized by substantial and conflicting minority interests. Numerical equality must be the rule; any deviation therefrom must be rationalized by the likelihood of majority subjugation of the minority. The courts should receive evidence of economic factors, but because they are the sole arbiters of equal protection claims, evidence of the popular will should be disregarded in toto. Finally since legislators are better equipped to analyze minority needs, the state itself should be given ample opportunity to formulate its own constitutional reapportionment. The threat of judicial reapportionment must not, however, be meaningless. Upon reviewing all the facts relevant to the extent of, and rationalizations for, population disparities, the courts themselves must be prepared to implement the precepts of the Constitution with binding force and authority.

Footnotes 1 An “apportionment case," in the lexicon of the legal profession, may also refer to litigation involving the apportionment of United States congressional districts. Although the congressional problem may be factually similar to that of the state, their respective solutions require the application of different constitutional principles. For this reason, and also because a recent Supreme Court decision theoretically moots the congressional enigma, a discussion of congressional malapportionment is beyond the scope of this note. See Wesberry v. Sanders. 32 U.S.L. Week 4142 (U.S. Feb. 17, 1964).

2 E.g., Germano v. Kerner, 220 F. Supp. 230 (N.D. Ill. 1963), appeal docketed. 32 U.S.L. Week 3228 (U.S. Nov. 20, 1963) (No. 636).

3 E.g., Moss. v. Burkhart, 220 F. Supp. 149 (W.D. Okla. 1963), appeal docketed sub nom., Williams v. Moss, 32 U.S.L. Week 3170 (U.S. Sept. 18, 1963) (No. 476). Malapportionment created by law is sometimes called de facto malapportionment. See Atelson, The aftermath of Baker v. Carr - An Adventure in Judicial Experimentation, 51 Calif. L. Rev., 535, 536 (1963).

4 E.g., Baker v. Carr, 369 U.S. 186 (1962). Where the legislature refuses to reapportion despite a constitutional directive to do so, the result is called de jure malapportionment. See Atelson, supra.

5 The question of who are proper, necessary and indispensable party defendants has, to the writer's knowledge, been discussed in only one case and then very cursorily. See Maryland Citizens Committee for Fair Congressional Redistricting v. Tawes, 226 F. Supp. 80, 81 (D. Maryland 1964). where the court said:

We... think that the defendants [the governor and the secretary of state] are proper parties, that the Boards of Election Supervisors of the various political subdivisions of the State are not indispensable parties, and that a decree against the present defendants would be effective without joining the election boards.

In Moss v. Burkhart, supra, plaintiff joined the state treasurer, the attorney general and his first assistant, the auditor, members of the state tax commission, members of the state election board and the governor. It would seem that any member of the government who performs any function relating to the conduct of elections is at least potentially a proper party defendant. Whether this is correct procedure, however, is another matter. In addition to various state officials, the plaintiff in Lisco v. Love, 219 F. Supp. 922 (D. Colo. 1963), appeal docketed sub nom., Lucas v. Forty-Fourth General Assembly of Colorado, 32 U.S.L. Week 3180 (U.S. Sept. 30. 1963) (No. 508), joined the entire state legislature. If the power to authorize and effectuate periodic reapportionment rests with the legislature, as is usually the case, it is difficult to see why that body as a whole is not always indispensable in litigation of this nature.

6 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state or territory, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secure by the constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. Rev. Stat. § 1979 (1876), 42 U.S.C. § 1983 (1959). 7 Three judges are required to enjoin the operation of a state statute. 28 U.S.C. § 2281, § 2284. Direct appeals to the Supreme Court may be taken from their decision. 28 U.S.C. § 1253. Plaintiff, of course, may instead seek redress in his own state court as was attempted in Maryland Committee for Fair Representation v. Tawes, 229 Md. 406, 184 A.2d 715 (1962), appeal docketed, 32 U.S.L. Week 3015 (U.S. Oct. 24, 1962) (No. 554, 1962 Term; renumbered No. 29, 1963 Term); but the great preponderance of apportionment cases are instituted in federal district court.

8 Of the 18 apportionment appeals now noted on the Supreme Court docket, No. 20, W.M.C.A., Inc. v. Simon; No. 23, Reynolds v. Sims; No. 24. Beadle v. Scholle; No. 27, Vann v. Frink; No. 29, Maryland Committee for Fair Representation v. Tawes; No. 41, McConnell v. Frink; No. 69, Davis v. Mann; No. 297, Swann v. Adams; No. 307, Roman v. Sincock; No. 381, Meyers v. Thigpen; No. 454, Nolan v. Rhodes; No. 455, Sive v. Ellis; No. 476, Williams v. Moss; No. 508, Lucas v. Forty-Fourth General Assembly of Colorado; No. 534, Oklahoma Farm Bureau v. Moss; No. 546, Baldwin v. Moss; No. 559, Lucas v. Adams; No. 636, Germano v. Kerner; 8 were taken by plaintiffs and 10 by defendants. The 18 appeals however, represent only twelve different states and in only half of the states were plaintiffs successful.

9 369 U.S. 186 (1962).

10 McCloskey, The Supreme Court 1961 Term, Foreword: The Reapportionment Case, 76 Harv. L. Rev. 54, 56 (1962).

11 Statistics cited by J. Harlan, dissenting, Gray v. Sanders, 372 U.S. 368, 382 (1963).

12 Wall St. Journal, February 19, 1964, p. 3. col. 2.

13 369 U.S. at 217.

14 Id. at 226.

15 See, for example, Germano v. Kerner, 220 F. Supp. 230, 234-235 (N.D. Ill. 1963). appeal docketed, 32 U.S.L. Week. 3228 (U.S. Nov. 20, 1963) (No. 636):

Needless to say the divergent views found in the above cited opinions are a clear indication that this general issue has not yet been decided by the Supreme Court. Such a decision should be forthcoming in the relatively near future as most of the cases cited in this memorandum (I would hope and anticipate that this case will join them) are presently pending before the Court.

Also, Moss v. Burkhart, 220 F. Supp. 149, 155 (W.D. Okla. 1963), appeal docketed sub nom., Williams v. Moss, 32 U.S.L. Week 3170 (U.S. Sept. 18, 1963) (No. 476):

It may well be that the affirmative relief we grant is in excess of our judicial power. If so, we will know in due time, for the questions are squarely presented, and will undoubtedly be authoritatively decided during the next term of the Supreme Court.

16 See note 8, supra.

17 369 U.S. at 207-208.

18 The Michigan Supreme Court is the only court thus far to have promulgated a standard based upon specific population ratios. ''When a legislative apportionment provides districts having more than double the population of others, the constitutional range of discretion is violated. This is not to say that less than such 2 to 1 ratio is constitutionally good. It is to say only that peril ends and disaster occurs when that line is crossed.''

Scholle v. Hare, 367 Mich. 176, 116 N.W. 2d 350 (1962), cert. granted sub nom., Beadle v. Scholle, 32 U.S.L. Week 3266 (U.S. Oct. 15, 1962) (No. 517, 1962 Term; renumbered No. 24, 1963 Term).

19 369 U.S. at 244.

20 Id. at 258.

21 Id. at 257.

22 Id. At 254.

23 Scholle v. Hare, 269 U.S. 429 (1962).

24 370 U.S. 190 (1962).

25 Id. at 191.

26 372 U.S. 368 (1963).

27 Id. at 376.

28 lbid.

29 Id. at 379.

30 Id. at 381.

31 32 U.S.L. Week 4142 (U.S. Feb. 17, 1964).

32 Id. at 4113.

33 211 F. Supp. 826 (W.D. Wash. 1962), appeal docketed sub nom., Meyers v. Thigpen, 32 U.S.L. Week 3105 (U.S. Aug. 16, 1964) (No. 381).

34 32 U.S.L. Week at 4144.

35 Maryland Committee for Fair Representation v. Tawes, supra at 719.

36 Sims v. Frink, 208 F. Supp. 431, 438 (M.D. Ala. 1962), appeal docketed sub nom., McConnell v. Frink, 32 U.S.L. Week 3015 (U.S. Nov. 23, 1962) (No. 610, 1962 Term; renumbered No. 41, 1963 Term).

37 220 F. Supp. 230 (N.D. Ill. 1963), appeal docketed, 32 U.S.L. Week 3228 (U.S. Nov. 20, 1963) (No. 636).

38 Id. at 235.

39 218 F. Supp. 953 (S.D. Ohio 1963), appeal docketed, 32 U.S.L. Week 3105 (U.S. Sept. 9, 1963) (No. 454).

40 Id. at 958. 41 32 U.S.L. Week 4142 (U.S. Feb. 17, 1964).

42 220 F. Supp. 149 (W.D. Okla. 1963), appeal docketed sub nom., Williams v. Moss. 32 U.S.L. Week 3170 (U.S. Sept. 18, 1963) (No. 476).

43 Id. at 156.

44 215 F. Supp. 169 (D. Del. 1963), appeal docketed sub nom., Roman v. Sincock, 32 U.S.L. Week 3086 (U.S. July 25, 1963) (No. 307)

45 Id. at 189.

46 219 F. Supp. 922 (D. Colo. 1963), appeal docketed sub nom, Lucas v. Forty-Fourth General Assembly of Colorado, 32 U.S.L. Week 3180 (U.S. Sept. 30, 1963), (No. 508).

47 Id. at 932.

48 E.g., W.M.C.A. v. Simon, 208 F. Supp. 368 (S.D. N.Y. 1962), appeal docketed, 32 U.S.L. Week 3266 (U.S. Sept. 26, 1962) (No. 460, 1962 Term; renumbered No. 20, 1963 Term).

49 218 F. Supp. 953, (S.D. Ohio 1963), appeal docketed, 32 U.S.L. Week 3105 (U.S. Sept. 9, 1963) (No. 454).

50 Id. at 958.

51 219 F. Supp. 922 (D. Colo. 1963), appeal docketed sub nom., Lucas v. Forty-Fourth General Assembly of Colorado, 32 U.S.L. Week 3180 (U.S. Sept. 30, 1963) (No. 508).

52 Lisco v. McNichols, 208 F. Supp. 471 (D. Colo. 1962).

53 Lisco v. Love, supra, note 51 at 933.

54 Id. at 932.

55 If there has been a significant passage of time since the last constituent decision on apportionment, and if population shifts in the interval have substantially altered the distribution of legislative seats, and if the channels of popular access to the issue are obstructed, the present apportionment might be held to violate the fourteenth amendment. But no constitutional question could be raised as to the actual, substantive nature of the apportionment if the popular will had expressed itself or possessed adequate means for doing so. McClosky, The Supreme Court 1961 Term, Foreword: The Reapportionment Case, 76 HARV. L. REV. 54, 71 (1962).

56 Tennessee's legislature consistently ignored a constitutional directive to reapportion every ten years. Such blatant malfeasance on the part of the legislature may have been important to the court in reaching its determination, but it is difficult to see what logical connection legislative malfeasance has with invidious discrimination per se.

57 The purest form of voter equality would be at-large elections. The courts, however, have refrained from even threatening such action, much less actually ordering it.

58 The court has been particularly unwilling to intervene in matters concerning the structure and organization of the political institutions of the states. The abstention from judicial entry into such areas has been greater even than that which marks the court's ordinary approach to issues of state power challenged under broad federal guarantees. Baker v. Carr, 369 U.S. 186, 284, Justice Frankfurter dissenting.

59 E.g., Scholle v. Hare, 367 Mich. 176, 116 N.W.2d 350 (1962), cert. granted sub nom. Beadle v. Scholle, 32 U.S.L. Week 3266 (U.S. Nov. 23, 1962) (No. 610, 1962 Term; renumbered No. 23, 1963 Term).

60 E.g., Sims v. Frink, 208 F. Supp. 431, (M.D. Ala. 1962), appeal docketed sub nom., McConnell v. Frink, 32 U.S.L. Week 3266 (U.S. Nov. 23, 1962) (No. 610, 1962 Term; renumbered No. 23, 1963 Term).

61 E.g., Moss v. Burkhart, 220 F. Supp. 149 (W.D. Okla. 1963), appeal docketed sub nom., Williams v. Moss, 32 U.S.L. Week 3170 (U.S. Sept. 19, 1963) (No. 476).

62 See "Subject Matter Summary of Cases Recently Filed", No. 476, Williams v. Moss, 32, U.S.L. Week 3170.

63 Or, as the court said in Moss v. Burkhart, 220 F. Supp. 149, lS5 (W.D. Okla. 1963), appeal docketed sub nom., Williams v. Moss, 32 U.S.L. Week 3170 (U.S. Sept. 18, 1963) (No. 476), “we shall proceed on the fundamental premise that equity is never impotent or indolent before the law."

64 Goldberg, The Statistics of Malapportionment, 72 Yale L.J. 90, 100-101 (1962).

65 Moss v. Burkhart may be the one exception. See footnote 42 and accompanying text.

Judicial Dilemma: Primary vs. Secondary Picketing by Thomas J. McLeod

[This article is followed by Footnotes] About the Author Thomas Mcleod is 26 years old and is a third year student at William Mitchell. He received his B.A. from St. Thomas College in 1961 and for the last six and one half years has been employed by West Publishing Company. Tom has five children and lives at 1396 Grand Avenue in St. Paul.

"Statutory construction in doubtful cases, in the last analysis, is a choice among competing policies as starting points for reasoning."1 In such words might one explain the continuing conflict in the decisions of the National Labor Relations Board construing section 8(b)(4)2 as it relates to picketing.

The legislative history reveals that this section, as amended in 1959, is aimed at relieving the primary employer from pressures resulting from loss of business brought about by coercive actions directed by a union toward neutral employers and employees.

May a union picket on railroad right-of-way adjacent to employers premises at a gate which employees were not permitted to use when the picketing is manifestly for object of preventing railroad employees from handling employer's goods? In Carrier Corp. v. NLRB3 the union struck the plant of Carrier Corp. and placed pickets at all entrances to the plant. Immediately south of the plant was a spur of the New York Central Railroad used to serve Carrier and other plants in the area. The railroad owned a right-of-way that was enclosed by a fence which was a continuation of one enclosing Carrier's premises. Access to the right-of-way was provided by a gate located on railroad property.4 This gate was also picketed by union members and this activity is the subject for review in this case. When railroad supervisory personnel attempted to pass through the gate for the purpose of 'spotting' and picking up box cars, the union members threatened them and blocked the entrance. Mr. Thomas F. Maher. the Trial Examiner, issued his Intermediate Report finding that the Respondents had violated section 8(b)(4)(i) and (ii)(B) of the Act. The Board reversed, finding that Respondents did not violate section 8(b)(4)(i)(B) or 8(b)(4)(ii)(B) on the ground that the work being performed by those passing through this gate was related to normal plant operation and consequently the secondary boycott prohibition did not apply. On appeal to the Second Circuit Judge Waterman reinstated the finding of the Trial Examiner. He recited that in picketing the railroad right-of-way the union was not furthering its legitimate objective of publicizing its dispute to Carrier employees but was attempting to induce the railroad to cease dealing with Carrier. Judge Lumbard dissented submitting that the picketing was "primary activity." Board Decisions - 1947 to 1952 Prior constructions of section 8(b)(4) can perhaps best be divided into two time periods. The first period, beginning with the enactment of the Taft-Hartley Act in 1947 and terminating in 1952, may be characterized by relatively narrow constructions of sec. 8(b)(4). The cases may be further subdivided into those involving picketing at the premises of the primary employer and those involving picketing at neutral premises.

"It is clear that the activities here in question violate the statute if the statute is read literally."5 However, the Board and the courts have given these sections a "complex interpretive gloss,"6 declaring that they must be interpreted and not read literally. The basic difficulty one encounters with a literal reading is that traditional picketing around the premises of an employer with whom a union has a dispute almost inevitably involves some interference with the relations between that employer and his suppliers or customers. It is clear from the legislative history of the act that this activity was not intended to be outlawed.

To accommodate the apparent conflict between the literal language of the statute and the Congressional purpose, the Board and the courts have evolved a "primary-secondary activity" distinction.7 The line that has been drawn between these two kinds of activity is very fine and involves distinctions which one court considers "more nice than obvious."8 The dichotomy between primary and secondary picketing is "unquestionably the area of greatest difficulty and importance in the administration of the statute.''9

From the earliest cases, the Board ruled that all picketing at the premises of the primary employer was immune from the proscriptions of section 8(b)(4).10

Relying on the legislative history rather than a literal interpretation of the statute the Board maintained this position even when it was clear that the picketing could have no appeal but to employees of neutral employers. In United Elec. Workers (Ryan Constr. Corp.),11 the union picketed the entire premises of the primary employer including a separate gate which had been erected to provide ingress for the employees of a neutral contractor doing work on the premises of the primary employer. The Board determined that such activity, when performed wholly at the premises of the primary employer "cannot be called 'secondary’ even though, as is virtually always the case, an object of the picketing is to dissuade all persons from entering such premises for business reasons."12

To govern situations when picketing activities 'look place on neutral premises, the Board developed what is now referred to as "the situs of the dispute," or "the area of primary conduct" doctrine.

The first application of this doctrine carving out a new and broader geographical area of immunity based on the "situs of the dispute" concept was in Local 807, Teamsters Union (Schultz Refrigerated Serv.). There, Schultz moved his place of business from New York City to New Jersey, replacing members of the New York union by drivers from a New Jersey local. Schultz continued to do business in New York. The Board allowed members of the New York local to picket around his trucks while they were being loaded or unloaded at the premises of New York City customers. The Board admitted that there is no distinction between lawful primary picketing and unlawful secondary picketing. Both are directed at influencing third parties to withhold their business from the struck employer. However, "one important test of the lawfulness of a union's picketing activities in the course of its dispute with an employer is the identification of such picketing with the actual functioning of the primary employer’s business at the situs of the labor dispute."13

It was evident at the outset that certain limitations would be required to effectively apply the "situs of the dispute" doctrine and the Board availed itself of the situation arising in Sailors Union (Moore Dry Dock)14 to impose such limitations in the form of the often-quoted "Moore Dry Dock Conditions."

"Picketing of the premises of a secondary employer is primary if it meets the following conditions:

(a) the picketing is strictly limited to times when the situs of the dispute is located on the secondary employer's premises;

(b) at the time of the picketing the primary employer is engaged in its normal business at the situs;

(c) the picketing is limited to places reasonably close to the location of the situs;

(d) the picketing discloses clearly that the dispute is with the primary employer."15

Schultz and Moore Dry Dock are difficult to reconcile with three closely-preceding "neutral" or “common-situs" Board decisions.16 All three involved disputes concerning the use of non-union employees at construction sites. The Board did not rely upon the Primary-secondary activity distinction but found a violation of sec. 8(b)(4) on the ground that an objective of the unions' action was to force the general contractors to cancel their contracts with sub-contractor-employers of non-union men.

One year later, on June 4, 1951 the Supreme Court handed down four decisions emphasizing its unwillingness to rely solely on the geographical distinction as a determinant of primary and secondary picketing. In NLRB v. International Rice Milling Co.,17 union18 members were picketing the premises of Kaplan Rice Mills in order to secure recognition of the union as the collective bargaining representative of the mill employees. The union members encouraged the drivers of a truck of a neutral customer to refrain from entering the premises to pick up an order of goods. The Court stated that while the activity was geographically located at the primary employer's premises, this fact, while significant, is not necessarily conclusive. However, the Court deemed the activity primary because there was "no suggestion that the union sought concerted conduct by such other employees."19 "Although the Court's specific ratio decidendi in this case was not to survive the 1959 amendment of sec. 8(b)(4) by which the requirement that concerted action be encouraged was eliminated,20 its basic approach to the case was to have a profound effect on subsequent constructions of the statute."21 Geographical areas were no longer exempted from the operation of sec. 8(b}(4).

A determination of the legitimacy of union activities in subsequent cases was to proceed on an examination of intent or objectives when neutrals were in danger of harm as a result of a union dispute not their own. In the remaining three cases of June 4, 1961, Watson, Langer and Denver, the Board's finding below of a violation of sec. 8(b)(4) was affirmed. The Court emphasized the centrality of the union's objectives.22

"To find a violation of Sec. 8(b)(4) it became sufficient that an objective of a union's actions was to interfere with business relations between the primary employer and neutral third parties."23 However, as Judge Prettyman recognized in Seafarers Int. Union v. NLRB,24 a union hopes, even if it does not so intend, that all persons including neutral employees will honor the picket line. Thus harm to neutral employers could be justified only if it occurred as an incidental effect of the union's pursuit of legitimate strike objectives. It remained "(1) to identify the strike objectives which under the act were legitimate as distinguished from hoped-for results which if incidentally accomplished could be permissible but which could not be independently pursued, and (2) to establish evidentiary guidelines by which the true objectives of union activity could be ascertained..."25 Board Decisions - 1952 to 1963 Substantial progress was made in solving the two problems mentioned above during the second of the time periods. Concomitant with that progress the statute received broader readings from the Board and the courts. The leading case of the period was Local 67, Brewery Workers (Washington Coca-Cola Bottling Works).26 There, the union picketed the premises of the primary employer and also picketed the company's trucks as they made their rounds to customers' premises. The Board held that the picketing of the trucks was a violation of sec. 8(b)(4). It distinguished this case from Schultz and other prior ambulatory situs cases on the ground that in the earlier cases the primary employer had no permanent place of business at which the union could adequately publicize its dispute.

Thus, the "Washington Coca-Cola Doctrine" in effect added to the four expressed in Moore Dry Dock a fifth condition:

In order to justify picketing at neutral premises it must be shown that there was no reasonable opportunity for the union to attain its lawful objectives by picketing the premises of the primary employer.27

"Although the 'Washington Coca-Cola Doctrine' was first developed in ambulatory situs cases, its rationale was extended to all cases threatening involvement of neutral employers and their employees."28

In Local 1017, Retail Fruit Clerks Union (Crystal Palace Mkt.)29 the Board held that the conduct of union members who chose to picket seven of the eleven entrances to a market hall in which the employer owned several stands instead of picketing at the site of each stand violated sec. 8(b)(4). The Board noted: "In developing and applying these standards, the controlling consideration has been to require that the picketing be so conducted as to minimize its impact on neutral employees insofar as this can be done without substantial impairment of the effectiveness of the picketing and reaching the primary employees."30

In Local 861, Int'l Bd. of Elec. Workers (Plauche Elec.)31 the Board modified the Washington Coca-Cola doctrine in its determination that it is "one circumstance, among others, in determining an object of the picketing."32 Despite modification the rationale enunciated in Washington Coca-Cola is clear;

(1) The Supreme Court insists that the gravamen of any complaint under sec. 8(b)(4) is a union's pursuit of a forbidden objective.

(2) Legitimate objectives have been identified as "reaching the primary employees;"33 'publicizing its labor dispute in a traditional way among employees primarily interested;”34 “communicating to employees of a primary employer its picketing message."35

(3) Neutral employees can be involved only if incidental to the pursuit of a legitimate primary objective.

(4) Picketing must be conducted in such a way as to minimize its impact on neutral employees insofar as this can be done without substantially impairing the effectiveness of the picketing in reaching the primary employees.36

The application of these principles to the issue presented in Carrier Corp. would lead to but one conclusion. "The union demonstrated that its manifest, and sole, objective was to induce or encourage railroad employees, or to coerce the railroad, to refuse to handle Carrier goods. Such results; although permissible when merely incidental to the pursuit of legitimate objectives,37 here involved no such redemptive feature.38

These principles have also served as guidelines for the courts of appeals when the picketing of neutral or secondary premises has been at issue.39

The “separate gate” cases have also been subject to the principles mentioned. Thus, in United Steelworkers v. NLRB40 the court adopted the following standard which would render picketing lawful “There must be a separate gate marked and set apart from the other gates; the work done by the men who use the gate must be unrelated to the normal operations of the employer and the work must be of a kind that would not, if done when the plant were engaged in its regular operations, necessitate curtailing those operations.”41 Dissent The dissenting opinion is based on an argument the majority contends is fallacious. The gist of the argument is that in Carrier the employees were not encouraged, nor did they refuse, to serve the other plants. The picketing outside one of Carrier’s own delivery entrances might have accomplished

In support of its view, the dissent refers to the court’s holding in Seafarers Int’l Union v. NLRB.42 The facts of that case are essentially as follows: A ship owned by the primary employer was undergoing repairs in a shipyard on neutral premises. The union employees of the primary employer picketed outside the gates of the yard for a week after all non-supervisory personnel had been removed from the ship. As a result, the neutral employees of the primary employer. The Board held that the union had violated sec. 8(b)(4). However, the Court of Appeals for the District of Columbia Circuit reversed, holding that the effect of the strike on the neutral employees was only incidental to a lawful strike against the primary employer. The court there said: “Here Todd, the unoffending employer, bore no more adverse effects than it would have suffered had it been working on the ship at a dock owned by (the primary Employer) ... several miles away and had the picketing been at that dock. If such had been the case, Todd’s employees would have refused to cross the line in order to work on the (ship). Such picketing would undoubtedly have been legal.”43 The court then reasoned that since the effect would be the same, picketing in both locations would be lawful.

The majority submits that the crucial fallacy in this argument is the failure of the dissent to distinguish between fully legitimate objectives and those hoped-for results which are not permissible unless incidentally achieved. “Because a harm may be permitted in one instance only because incidental to lawful activities, it is fallacious reasoning to hold that the same harm must be permitted in another instance where it is independently pursued.”44

Judge Lumbard, in writing the dissent, contends that the majority’s position is based on a fine spun distinction having no basis in legislative history or in reason. “What the alleged distinction comes down to is that the union can seek to influence neutral employees at the premises of the primary employer and not elsewhere (which in this case means, of course, that it cannot use pickets to influence the railroad workers at all). But this makes the test not the union’s objective but the location of the picketing, a test which the majority itself admits to be obsolete.”45 Conclusion As we have seen, the shift from primary-secondary activity based on a geographical distinction to a consideration of lawful objectives has resulted in much litigation. The Board and the courts are face with problems in which they must weigh the right of the employees to publicize their dispute to fellow employees against the right of management to be free of pressure and coercion which might be exerted by neutral employers and employees. There seems to be little doubt but that Congress did not intend to have the statute interpreted literally. The problem, then, is how far Congress intended the Board and the courts should go in the interpretation of the statute. It is my opinion that the decisions have followed a pattern Congress might well have anticipated. It would be extremely difficult to cover all situations in the area of picketing under a single statute. Consequently Congress has attempted to set up the guidelines for use by the Board and the courts in the form sec. 8(b)(4). The Board and the courts must frame the many situations with which they are presented within these guidelines and render their decisions in a manner which will both satisfy the purpose and intent behind the statute and allow the employer and employees full latitude in equitably settling the labor disputes.

Note: Subsequent to the preparation and completion of the paper, the United States Supreme Court granted certiorari for review of the decision of the Court of Appeals.

On March 23, 1964, the Supreme Court reversed the decision46 holding that it is not unfair labor practice for union to picket entrance, used exclusively by railroad personnel, to railroad spur track located on right-of-way owned by railroad but adjacent to struck employer’s premises.

“Picketing has traditionally been a major weapon to implement the goals of a strike and has characteristically been aimed at all those approaching the situs whose mission is selling, delivering or otherwise contributing to the operations which the strike is endeavoring to halt. In light of this traditional goal of primary pressures we think Congress intended to preserve the right to picket during a strike a gate reserved for employees of neutral delivery men furnishing day-to-day service essential to the employer’s regular operations.”47

The location of the picketing, though important, is not deemed of decisive significance. The legality of separate gate picketing depends upon the type of work being performed by the employees who use that gate. If the duties of the employees are connected with the day-to-day operations of the employer, picketing directed at them is protected and the objective of the union will be considered lawful.

The Supreme Court then determined that for the purposes of sec. 8(b)(4) picketing at a gate situated on railroad property was at a situs so proximate and related to the employer's day-to-day operation that it is no more unlawful than if it had occurred at a gate owned by Carrier Corp.

In Summary, the Supreme Court agrees with the analysis of the development of case law in the area of picketing as set forth in the majority opinion in the Court of appeals. However because of its determination that the picketing was lawful primary activity when conducted at a situs so proximate and related to the employer’s day-to-day operations, it disagrees with the finding of the Court of Appeals that the picketing was secondary activity when performed on the premises of a secondary employer and hence could not be considered incidental to lawful primary picketing.

Mr. Justice White delivered the opinion of the Court.

1 Frankfurter & Greene, the Labor Injunction 169 (1930).

2 61 Stat. 141 (1947), 29 U.S.C. Sec. 158(b)(4) (1958), as amended, 29 U.S.C. Sec. 158(b)(4) (Supp. III, 1962), amending 49 Stat. 452 (1935). The relevant portions of Sec. 8, as amended by 73 Stat. 542 (1959), presently read as follows:

(b) It shall be as unfair labor practice for a labor organization or its agents -

(4)(I) to engage in, or to induce or encourage any individual employed by any persons engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is -

(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any producer, processor or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization has been entitled as the representative of such employees under the provisions of section 9;

Provided, That nothing contained in clause (b) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing;

Provided, That nothing contained in this subsection (b) shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer (other than his own employer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under this act Prior to 1959, what is now the first portion of subparagraph (B) was found in subparagraph (A); accordingly, many recent references are to Sec. 8(b)(4)(A). However, cases decided after 1959 refer to Sec. 8(b)(4)(B). Except in a few instances I shall simply refer to Sec. 8(b)(4).

3 311 F.2d 135 (2d Cir. 1962).

4 The Trial Examiner's findings show that this gate was padlocked when not opened for railroad switching operations. Railroad personnel held the key to the gate, which could also be opened by a master key, held by Carrier employees, to locks on Carrier property. Carrier employees were not permitted to use this gate to gain access to the Carrier plant.

5 311 F.2d at 138.

6 Ibid.

7 Ibid.

8 Local 761, Int'l Union of Elec. Workers v. NLRB, 366 U.S. 667, 674 (1961).

9 Koretz, Federal Regulation of Secondary Strikes and Boycotts - Another Chapter, 59 Colum. L. Rev. 125. 129 (1959).

10 311 F.2d at 140.

11 85 N.L.R.B. 417 (1949).

12 Id. at 418.

13 87 N.L.R.B. 502, 505 (1949).

14 Sailors Union (Moore Dry Dock), 92 N.L.R.B. 547 (1950).

15 Id. at 549.

16 Denver Bldg. and Constr. Trades Council, 82 N.L.R.B. 93 (1949); Local 501, Int'l Bd. of Elec. Workers (Samuel Langer), 82 N.L.R.B. 1028 (1949); Local 74, United Bd. of Carpenters (I. A. Watson Co.), 80 N.L.R.B. 533 (1948).

17 341 U.S. 665 (1951).

18 International Brotherhood of Teamsters.

19 341 U.S. at 671.

20 See statutes and text in note (2) supra.

21 311 F.2d at 142.

22 Local 74, United Bd. of Carpenters v. NLRB, 341 U.S. 708 (1951); Local 501, Int'l Bd. of Elec. Workers v. NLRB, 341 U.S. 694 (1957); NLRB v. Denver Bldg. and Constr. Trades Council, 341 U.S. 675 (1951).

23 311 F.2d at 143. Senator Taft, sponsor of the bill, stated: "Section 8(b)(4), relating to illegal strikes and boycotts, was amended in conference by striking out the words 'for the purpose of' and inserting the clause 'where an object thereof is.' " 93 Cong. Rec. 6859 (1947). 24 105 U.S. App. D.C. 211 (1959).

25 311 F.2d at 143.

26 107 N.L.R.B. 299 (1953), aff'd, 220 F.2d 380 (D.C. Cir. 1955).

27 NLRB v. Local 984, Teamsters Union, 251 F.2d 494 (6th Cir. 1958); NLRB v. Local 5246, United Steelworkers Union, 250 F.2d 184 (1st Cir. 1957); Local 659. Teamsters Union (Ready Mixed Concrete Co.), 116 N.L.R.B. 461, 473 (1956).

28 311 F.2d at 144.

29 116 N.L.R.B. 856 (1956), aff'd, 249 F.2d 591 (9th Cir. 1957).

30 Id. at 858.

31 135 N.L.R.B. 25O (1961).

32 Id. at 254.

33 116 N.L.R.B. at 859.

34 Local 659, Teamsters Union (Ready Mixed Concrete Co.), 116 N.L.R.B. at 474.

35 Ibid.

36 Di Giorgio Fruit Corp. v. NLRB, 191 F.2d 642 (D.C. Cir. 1951).

37 Ibid.

38 311 F.2d at 146.

39 See, e.g., NLRB v. united Steelworkers of America, 250 F.2d 184 (1st Cir. 1957); NLRB v. Local Union 984, Drivers, 251 F. 2d 494 (6th Cir. 1958); Brewery and Beverage Drivers Union v. NLRB, 220 F. 2d 380 (D.C. Cir. 1955); NLRB v. Local 802, assoc. Musicians, 226 F. 2d 900 (2d Cir. 1955); Burr v. NLRB, 321 F. 2d 612 (5th Cir. 1963). In the Burr case the Court held that picketing entrances of neutral retail furniture stores refusing to accede to union’s demand to cease handling products of primary employer with whom union had a dispute was unfair labor practice within the meaning of Sec. 8(b)(4)(I, ii) aa amended 29 U.S.C. Sec. 158 (b)(4)(i, ii).

The picketing activity was presumably an attempt by the union to test the 1959 Amendments to the Act of 1947. The Court said: “Congress, when it enacted the 1959 Amendments to the National Labor Relations Act, made a fundamental judgement as a part of its basic labor policy; it determined that... it was undesirable for primary employers to be subjected to cyclonic economic pressures through loss of business brought about through coercive actions directed by a union toward persons through whom one’s goods are sold or distributed; the important factor is the element of coercion against the neutral.

40 289 F. 2d 591 (2d Cir. 1961).

41 Id. at 595.

42 265 F. 2d 585 {D.C. Cir. 1959). 43 311 F. 2d at 147.

44 Id. at 147-148.

45 Id. at 154.

46 United Steelworkers of America v. NLRB, 84 S. Ct. 899 (1964).

47 Id. at 904.

Sheran Law Day Speaker by Gary Phleger

This year's theme for Law Day is "Observe the Law - Key to Order, Justice, Freedom." Friday, May 1, 1964, was the seventh annual observance of Law Day since its establishment by Presidential proclamation in 1958.

Justice Robert J. Sheran of the Supreme Court of Minnesota spoke on "Liberty and the Law" to students and their wives at William Mitchell College of Law as a part of the school's annual observance of Law Day. Justice Sheran is the newest member of the Minnesota Supreme Court, having been appointed to the bench in January, 1963. He was a practicing attorney for eighteen years in the Mankato, Minnesota, area, with the firm of Gallagher, Farrish, Sheran and Zimmerman. Justice Sheran is also a member of the William Mitchell Moot Court Staff.

In addition to Justice Sheran's talk, Michael George, a member of Explorer Scout Troop No. 438, presented a talk on the subject of "What Law Means to Me." This troop, sponsored by the Ramsey County Bar Association, is made up of boys who plan to study law. Their advisor is Gerald C. Rummel, a 1960 graduate of William Mitchell.

DEFENDER SYSTEM STUDIED by John E. McKendrick

Recently, at the request of Chief Justice Oscar Knutson of the Minnesota Supreme Court, a Special Committee of the State Bar Association was formed to investigate the problem of post-conviction remedies and appeals for indigent prisoners in Minnesota. and to make positive recommendations based on the findings.

The request of the Chief Justice was predicated on the national furor created by the 1963 United States Supreme Court decision in Gideon v. Wainwright, which declared that to ratify the requirement" of due process an impoverished defendant (at least in felony prosecutions) has the right to assistance of counsel at all stages of the proceeding against him. This holding has caused consternation in most state courts, because it is possible that many presently incarcerated felons may have been denied proper counsel and must consequently be set free. The present committee, consisting of 21 members, was thus created to scrutinize the existing Public Defender system in Minnesota. Judge Donald F. Barbeau of the Hennepin County District Court was appointed to head the committee. Joining him are many prominent member of the State Judiciary and Bar including both Chief Justice Knutson and Justice Robert Sheran. of the Supreme Court Judge Arlo Hearing of Waconia, Dean Stephen R. Curtis of the William Mitchell College of Law, and Yale Kamisar, noted criminal law professor of the University of Minnesota Law School.

Although the existence of the committee might suggest to some that a serious problem exists Judge Barbeau states that just the opposite is true, at least in Minnesota. He notes that the State has had some provision for the appointment of counsel in felony and gross misdemeanor cases since 1869. And in Hennepin and Ramsey Counties, where approximately 90% of such criminal cases originate highly efficient Public Defender systems have functioned for many years.

Bolstering this conclusion is the fact that of the first 70 application for review of their conviction made by prisoners from Stillwater in the wake of the Gideon case, the Minnesota Supreme Court determined that none had any merit.

Despite Minnesota's fine record in this regard the committee now close to completing its work, has drafted a bill directed toward remedying any unsolved problems on the subject of indigent prisoner. Before passage into law, however the bill must first gain acceptance by the State Bar Association, and must then undergo a severe screening by the State Legislature.

The primary innovation in the proposed bill is that it establishes a statewide Public Defender Office, which would supervise similar offices in each of Minnesota's ten judicial districts. Each District Office would then be allotted a given number of personnel together with a designated salary for such personnel.

Remaining essentially untouched by the bill are the Public Defender systems in the metropolitan districts. The changes, if passed by the Legislature, would effect only the outlying districts and would integrate them into the statewide office. On the subject of final passage, Judge Barbeau foresees some difficulty with the Legislature, because the bill requires a relatively large appropriation of public funds.

BOOK REVIEW Carlin Presents Problems of Individual Practitioners by John E. McKendrick

This 234 page book represents a study by the author of the background working habits problems and frustrations of almost 100 individual practitioners in the city of Chicago. The study was conducted by means of personal interviews, in 1957. Although the number of lawyers interviewed is small, it may be said that their random selection represents a fair cross-section, in that the author has treated at length almost every conceivable segment of private practice using the participant's own words to describe his experiences and impressions.

As the author unfolds his story of this special type of lawyer it become apparent quite early that he has arrived at a two-sided premise. On one side is the fact that the individual practitioner populates the lower strata of the metropolitan bar, both in respect to prestige and in respect to wealth. But the individual practitioner's plight has had a seesaw effect on the makeup of the bar, for as he has declined in prominence from the respected position be once held, there has been a corresponding ascent in the prominence of the large city law firm with its staff of experts. Thus, the other side of the coin is that the "elite" of the metropolitan bar is now comprised of the members of the large law firms.

While the reasons for this transition are many and varied the historical cause is not difficult to comprehend. As our industrial economy has grown, so has the "giant corporation," with its ever increasing complexities. And as the author points out, ''bigness” is precisely the problem. The individual practitioner is, as a rule simply incapable of handling the intricate problems and specialized thinking that are more and more demanded of him.

This has not only resulted in the individual practitioner losing the best clients from the most respected fields, such as corporate work and estate planning, but has also in turn loaded him with the burden of dispatching the more undesirable tasks dispensed to the legal profession: the divorce a lawyer.

What is the answer? The author proposes a change in the attitude displayed by the “elite" of the metropolitan bar, the members of the large firm who control the functioning of the profession. He suggests that much of the unwillingness to consider the small practitioner, and to look out for his interests, is due to a fear that the large law firms will lose the exalted position they were so long in acquiring. But at the same time, he is aware that the age in which we live represents the most complex social order in history, and that with an understanding of this fact goes the knowledge that no one man can ever hope to master it all. The age when a lawyer could handle everybody's problems, large and small, has passed.

It must be acknowledged that this book presents a straightforward and lucid description of one of the most pressing problems confronting the bar associations in our larger metropolitan communities. Certainly, the general manner in which the author has presented the problem would suggest that Chicago does not represent a special case but a typical one. Still, while external changes and the course of history have contributed mightily to the current frustrations experienced by the private practitioner, it would seem that Mr. Catlin has but lightly considered a more subtle explanation for his shortcomings, one which perhaps may be found in his very nature and certainly which may be found in any profession or haphazard grouping of individuals. He alludes to it a one point:

"In short then, most individual practitioners in the metropolitan bar are men of fairly high ambition who haven't made it, and try as they may, they cannot rationalize that fact away."

To bolster his conclusions and observations, Mr. Carlin has made liberal use of tables and statistics at the conclusion of each chapter which, if nothing else lend graphic support to his attempt to define the essence of the individual practitioner. For this is the age of the expert, and rare is the private practitioner who is an expert, unless he does specialize.

It is a basic axiom that the more complex a legal problem, the more money will be offered for its solution. And because it is readily apparent that the large law firm have managed to staff themselves with most of the available experts needed to solve such problems it necessarily follows that the most lucrative business in each branch of the practice of law has found its way into the offices of the prestige- laden large law firms.

In many of these areas, little or no skill is required and, where it is, the common procedure is to farm out the problem to an expert. In this capacity, the individual practitioner is essentially acting as a broker rather than a lawyer. Mr. Carlin reaches the conclusion that unfortunately the "farming-out of his practice” is the rule rather than the exception.

In a number of cases, it is suggested that the lack of skill or apparent lack of it on the part of the individual practitioner may be the product of a general lack of initiative. But the author determines that in the majority of case the fault may be traced to his legal background. That background is predominantly a product of the night law schools of the 20's and 30's which, by any evaluation, maintained notoriously poor standards. It is a brutal fact to the individuals from these schools that when they began to compete with graduates from the accredited law schools, they more often than not came out on the short end.

One additional and increasingly important reason advanced for the decline of the individual practitioner is the inroads made on the legal profession by lay group, predominant of which are the brokers and savings and loan associations in the real estate field. Unquestionably this has deprived lawyers of a substantial source of business that they traditionally held. and, although Mr. Carlin feels that there is room to be made for these lay groups in the performance of essentially clerical tasks he recognizes that the development has placed the individual lawyer in a most precarious economic position.

Lawyers on Their Own: A Study of Individual Practitioners in Chicago; by Jerome E. Carlin; 1962: Rutgers University Press.

FACULTY SKETCH Johnson Specialist in Corporate Tax Field by R. W. Rahn

Mr. Robert J. Johnson, who teaches parts of the third year course in taxation, particularly corporate tax matters, comes well qualified to impart tax knowledge to our students. He is a partner in the Minneapolis law firm of Dorsey, Owen, Marquart, Windhorst & West, where his fields of specialization include both taxation and corporate mergers and reorganizations. He has been teaching the tax course at William Mitchell since 1955, and before that he taught accounting at the University of Minnesota Business School. He has written articles for publication in the Minnesota Law Review and in various tax periodicals. He is past chairman of the Hennepin County Bar Tax Section, and is now chairman of the Minnesota Bar Tax Section. Image Photograph of Robert Johnson

Born and raised in south Minneapolis, he attended Roosevelt High School. He went on to the College of St. Thomas, where he received a Bachelor of Arts degree summa cum laude in 1943, and then the Harvard Business School, where he earned a Masters degree in Business Administration, graduating in 1947 with distinction. Finally, he attended the University of Minnesota Law School, for his LL.B. with honors and as a member of the Order of the Coif in 1949.

His first employment was with the Minneapolis law firm then known as Dorsey, Coleman, Barker, Scott & Barber, where he has remained through its several changes in name. He also served in the United States Navy, spending 32 months aboard a destroyer-minesweeper in the Pacific. He is kept quite busy with his practice and the hours he devotes to professional meetings and other activities. In agreement with many other successful attorneys, Mr. Johnson points out that students are deceiving themselves if they look forward to actual practice anticipating a respite from their labors. He hastens to add, however, that the amount of time spent is amply rewarded by the satisfaction an attorney derives from the challenging type of work. he does. Mr. Johnson is often obliged to put in evening and weekend hours, which seems to be the lot of any attorney who hopes to do his job well, but he feels these are often his most productive hours, the times when he can really concentrate on his work, undisturbed.

Eight Circuit Mourns Death of John Sanborn by Kenneth Mitchell Image Photograph of John Sanborn

To say that John Sanborn is a quiet and kind man of culture who has unwaveringly practiced the principles of honor, truth, integrity and fairness is but to recount the most obvious of his virtues. Nor may explanation of his stature be completed by acknowledging the great depth of his wisdom, the keenness of his analytical and inquiring mind, the soundness of his judgment and his mastery of the law, or even by recognizing, in addition, his constant quest for truth and, when found, his fearless declaration of it whether popular or not. For any true appraisal of Judge Sanborn's stature must include two other qualities – humbleness and simplicity – even if they only blended with and added luster to those mentioned heretofore.

Charles E. Whittaker former Associate Justice, Supreme Court of the United States 44 MINN. L. REV. 197

On March 7, 1964 at 3: 15 a.m. the Right Honorable Judge John B. Sanborn, Senior Jurist for the 8th Circuit, died at Miller Hospital in St. Paul. To list all of the activities of a man who began his career of public service in 1913 and his judicial career in 1922 would require more space than can be provided here. His Circuit Court of Appeals opinions alone (1932-1963) run well over 900.

Judge Sanborn's contributions to legal education are also well known. He was trustee of the St. Paul College of Law from 1935 to 1956. He was Vice-President from 1945 to 1949, and President from 1949 to 1956. He was active in the merger which created William Mitchell and served as trustee and Vice- President until 1959 when he resigned from this and other activities. The law library at William Mitchell bears his name.

It is sometimes said that there are people who know history, and those who make it. Judge Sanborn fits both categories. Born on November 9, 1883 he was named after his father, an illustrious Civil War General who commanded the 4th Minnesota Regiment at the Battle of Vicksburg. Judge Sanborn was called upon by Governor Anderson to represent Minnesota in 1956 at a commemoration of a park near Vicksburg honoring the memory of the men who gave their lives there. Certainly these thoughts must have crossed his mind on August 4, 1958 when the full panel of 8th Circuit Judges were called upon to render the now famous "Little Rock" integration decisions. Nor was this the only historic event in which he had a participating hand. Following graduation from the St. Paul College of Law in 1907 Judge Sanborn was elected a member of the Minnesota House of Representatives in 1913. This was the last legislative session to reapportion legislative districts in the State of Minnesota.

A lifelong Republican, Judge Sanborn was re-elected to the House in 1915 and named State Insurance Commissioner in 1916. He resigned this position in 1918 to become a private in the U. S. Army and returned after a brief period of military service to private practice in St. Paul. In 1922 he was appointed by Minnesota's Governor J. A. Preus to the position of District Court Judge with a simultaneous appointment to the Minnesota Tax Commission. He left both positions in 1925 to accept an appointment as Federal District Judge from President Calvin Coolidge and held this position until 1932 when he was appointed to the Circuit Court of Appeals for the 8th District by President Herbert Hoover.

In 1959 Judge Sanborn received an honorary Doctor of Laws from William Mitchell and the honors of his colleagues as reported in 44 Minnesota Law Review, December 1959.

This article, by the Right Honorable Gunnar H. Nordbye and Mr. Justice Charles E. Whittaker, reveals that like most good jurists, Judge Sanborn was held in personal as well as legal esteem. Those who knew him pointed to his quiet wit, sense of humor, personal dignity and modesty. He was well-liked, friendly, and courteous. Justice Whittaker referred to him as the equal of any of the great judges who graced the 8th Circuit, including “his brilliant cousin Walter Sanborn, the scholarly Van Valkenberg, the keen Kenyon, and the redoubtable Riddick." As a jurist he was always courageous in his declaration of the law whether it was popular or not, and "his disdain for display, particularly of erudition, has not only been slyly articulated, but is subtly evident in nearly all of his opinions." He was always clear and concise. Essentially a juristic conservative, he did not believe the trial courts should be overturned at every slight, nor that precedent should be ignored.

Listed in Who's Who in America for many years, Judge Sanborn was also a member of the American Legion, Loyal Legion, and Chi Psi, by which he was given the Outstanding Achievement Award for 1959 by its successor Alpha Nu, its alumni and the University of Minnesota.

ALUMNI BRIEFS Grads Are Judges, Executives, International Lawyers by R. W. Rahn, Alumni Editor 1912

Justice ALBERT H. ANGSTMAN passed away at Helena, Montana on February 29, 1964. He was first elected to the Montana Supreme Court in 1928, going on the bench the first of the year in 1929. He resigned April 10, 1960 after serving for 27 years, longer than any other justice on that court. He is survived by his widow Frances who resides in Helena; a son Albert who is an attorney residing in Denver; a daughter, Mrs. Raymond Peete of Billings, who is married to an attorney; and another daughter, Mrs. Hildenbrand, who lives in Calgary, Alberta, Canada. 1921 Carl F. Granrud, chairman of the board and chief executive officer of Lutheran Brotherhood Life Insurance Company, Minneapolis, was recently elected president of the Minnesota Insurance Federation. He was also recently appointed to the president's advisory committee of Luther College at Decorah, Iowa.

Clayton W. Hamilton is with Beedle Law Firm, Ltd., engaging primarily in personal injury and corporation work. He graduated cum laude from William Mitchell. 1923 John E. Stryker and Marvin Jacobsen (class of 1961) are now in partnership as Stryker & Jacobson, practicing patent and trademark law in the First National Bank Building, St. Paul. He is a member of the State Bar Association. committee on patent, trademark and copyright law. 1924 Stacey H, Gifford, 62, who for the past eight years has been a vice president and secretary of Consolidated Foods Corporation, Chicago, was elected to the Board of Directors in October, 1963. He is also general counsel of that company.

Born in Aberdeen, South Dakota in 1902, he was associated with Orr, Stark & Kidder in St. Paul in 1924, when he graduated from William Mitchell. He was house counsel for Reid Murdock & Co., Chicago, from 1924 to 1938; assistant secretary and counsel from 1938 to 1945; and secretary and general counsel from 1945 to 1946. From 1946 to 1952, he was assistant secretary of Consolidated Grocers Corporation. In 1953 he went to Consolidated Foods, where he was elected vice president in 1955. He and his wife Marian live at 940 Beaver Lane, Glenview, Illinois. He is commodore of the Pista-Kee Yacht Club, McHenry, Illinois. 1926 Chief Justice James T. Harrison is still serving on the Montana Supreme Court, and was kind enough to furnish news of the passing of former Justice Angstman of that court. 1934 Wayne T. Childs, executive vice president of Great Northern Insurance Company, Minneapolis, has been named co-chairman of the housing committee for the convention of the National Association of Insurance Commissioners to be held in Minneapolis in June, 1964. 1938 George L. Wheeler recently wrote the following to your alumni editor, which we deem worthy of reproduction in full:

"Just received the January issue of the Opinion which I enjoyed reading very much.

I am accepting your invitation to write a bit about myself in the hopes that some of my old classmates will be encouraged to do the same. Some of them might even drop me a line!

"I graduated from the old Minneapolis College of Law in 1938. Practiced law in Minneapolis until 1942 when I left to become a field attorney with the National Labor Relations Board in Baltimore, Maryland. In 1950, I was transferred to Puerto Rico as the Board’s regional attorney which position I held until I resigned in 1956 to practice law in San Juan. My law practice since then has been devoted almost exclusively to labor-management problems.

Would you change my mailing address to Post Office Box 9898, Santurce, Puerto Rico?" 1947 Martin L. Stahlke of Chaska, Carver County Attorney since 1950, died January 26 at age 52. Born in Hamburg, Minnesota in 1912, he graduated from the University of Minnesota with a B.S. degree, and practiced in Chaska since graduation from law school. He is survived by his wife Audrey, son Craig, daughter Gretchen, and three brothers and five sisters. 1951 Robert J. Breunig, 39, has been appointed First District judge, succeeding Judge William C. Christianson of Red Wing, by Minnesota’s Governor Karl Rolvaag. A native of Jordan, Minnesota, he attended St. John's University at Collegeville and served in the Navy during World War II. He practiced law at Worthington, Minnesota from 1954 to 1958 and from 1958 until now has been practicing at Jordan. He is married and has three children. 1952 Warren D. Chamberlain, who has been practicing in Faribault, Minnesota since 1954, has entered partnership with two other William Mitchell graduates, Raymond G. Wahlberg and Franklin D. Peterson. The firm has offices for the general practice of law in Kenyon and Faribault. A native of Tracy, Minnesota, he attended Northern State Teachers College at Aberdeen and Marquette University at Milwaukee. 1953 Harry P. Strong of Kueppers, Strong & Kueppers spoke on “To Incorporate or Not to Incorporate, That is the Question.'' exploring tax and other consequences, as well as procedures, of incorporation. 1957 Herbert F. Somermeyer, 35, manager of patent and licensing services for Twin Cities operations of Univac Division of Sperry Rand Corporation since 1960, has been appointed to assist the company's vice president of patent and licensing in New York City. He is a member of the Minnesota Patent Law Association and the Institute of Electrical and Electronic Engineers. 1958 Raymond G. Wahlberg of Richfield; Minnesota has entered partnership with two other William Mitchell graduates, Warren D. Chamberlain and Franklin D. Peterson. A University of Minnesota graduate in business administration, he was formerly employed by Electric Machinery Manufacturing Company as an account analyst; Waldorf Paper Company as chief accountant and credit manager; and International Housing Corporation as head of the legal and accounting departments. 1959 Ernest A. Beedle of Beedle Law Firm, Ltd., in the Union Building in South St. Paul, is now serving his third term as State Representative for the 46th Legislative District South (West side of St. Paul). He was elected to his first term while a student at William Mitchell.

James F. Finley is associated with R. Donald Kelly in the practice of law in the Minnesota Building, St. Paul. He is also Ramsey County Court Commissioner, and executive secretary of the Transfer Men's Association of St. Paul, Inc. The new firm will continue the law practice of the late Joseph M. Donahue, Class of ‘33. Thomas F. McCann, 37, executive assistant in the insurance law department of the St. Paul Fire and Marine Insurance Company in St. Paul, has been elected assistant secretary, Casualty and Surety Division. He was also elected mayor of Shoreview, Minnesota in 1963.

Bruce A. Poulsen, attorney in the law department, Prudential Insurance Company, Minneapolis, recently was promoted to assistant counsel of that company.

Kenneth Scott, who is practicing in Fairmont, Minnesota, is State Representative for Martin County.

Alonzo B. Seran is now practicing in general partnership with the firm of Mastor, Hart & Seran, Roanoke Building, Minneapolis.

Charles R. Wahlquist, who has been in general practice at Starbuck, Minnesota since October 1963, has taken over the practice of the late William Merrill. He is a graduate of Hamline University.

Charles R. Weaver, partner in the firm of Weaver, Talle & Herrick, with offices in Anoka and Fridley, Minnesota, presented a talk entitled "Legal Descriptions I Have Known," concerning legal description problems in abstract examination, at the 13th Annual Fall Institute held November 7-8, 1963 at the Leamington Hotel, Minneapolis. He was formerly with Cutter & Babcock, Anoka. 1960 Gary W. Flakne, 30, is practicing on his own in the Minnesota Federal Building, Minneapolis, handling primarily personal injury work. He is also State Representative for the Fifth Congressional District.

Kenneth M. Schadeck, formerly an associate of the firm, has been admitted to partnership with Altman, Geraghty & Mulally, with offices in the Degree of Honor Building, St. Paul. 1961 Harry F. Christian, formerly with Hanson, Hazen & Lynch in St. Paul, has formed a partnership for the general practice of law with William L. Heinen, Le Sueur County Attorney.

Peter F. Frenzer, 29, became assistant treasurer of United Benefit Life Insurance Company, the Life affiliate of Mutual of Omaha, on January 27, 1964. He joined the company in 1952 as an investment analyst, after working for Pru-neapolis. Frenzer received a B.S.C. degree from Creighton University summa cum laude in 1956, and was graduated cum laude from William Mitchell in 1961. He is admitted to practice in Minnesota and Nebraska, and before the federal courts.

Dale J. Happe, 31, formerly in the ordinary premium accounting division of Prudential Insurance Company, has been with the Bloomington City Attorney’s office since June 1962. He is now Assistant City Attorney, engaging primarily in trial and appellate work. Happe’s brother Gene is currently a third year student at William Mitchell.

Patrick W. Hawkins is with Beedle Law Firm, Ltd., engaging primarily in domestic relations and criminal law.

Marvin Jacobson is now practicing with John E. Stryker (Class of 1923) as Stryker & Jacobson in the First National Bank Building, St. Paul. He engages primarily in patent and trademark law, and is a member of the State Bar Association committee on patent, trademark and copyright law. Charles A. Johnson, 28, patent attorney with Univac Division of Sperry Rand Corporation in St. Paul since 1961, joined the Albert Lea firm of Peterson, Peterson, & Tuveson. Last year, Johnson completed requirements for practice as a patent attorney before the United States Patent Office.

Franklin D. Peterson, village attorney at Kenyon, Minnesota, has entered partnership with two other William Mitchel graduates, Warren D. Chamberlain and Raymond G. Wahlberg. A graduate of St. Cloud State College in business administration, he has practiced law in Kenyon for a year.

Kenneth M. Strom, formerly with Peterson & Holtze, Minneapolis, is now associated in the general practice of law with Kermit Hoversten in Austin, Minnesota, in the Minnesota Trust Building.

Robert T. White, formerly with Miley & Narveson, is with Murnane, Murnane, Battis & De Lambert in the Commerce Building, St. Paul, as of April 6, 1964. 1962 Thomas C. Dillon, a native of Faribault, is now associated with John E. Coughlin in the practice of law at Faribault. Dillon attended St. Thomas College, St. Paul, and graduated from the university of Minnesota.

Thomas J. Nikolai, 31, a patent attorney with Univac Division of Sperry Rand Corporation, has been appointed acting manager of patent and licensing services for Twin Cities operations of the company. He received a degree in electrical engineering from the University of Minnesota in 1956, and was an honor graduate of William Mitchell.

Harold J.W. Sweet, 32., formerly group insurance contract approver with Prudential Insurance Company, Minneapolis, has been associated since October with Mordaunt, Walstad, Cousineau & McGuire in the First National Bank Building, Minneapolis. A native of Fairmont, Minnesota, Sweet served in the Counterintelligence Corps while in the Army from 1954 to 1956. 1963 Herbert M. Adrian is now a registered patent attorney, working with the Hooker Chemical Corporation, Niagara Falls, New York.

Robert F. Berger has become a partner in the firm of O’Leary, Trenti & Berger at Virginia, Minnesota. A native of Virginia, he graduated from William Mitchell cum laude. He was with the United States Fidelity and Guaranty Company for four years.

Larry J. Culligan, 30, is now in the textbook department at West Publishing Company in St. Paul. He was formerly with the manuscript department.

Martin J. Joyce, 28, has been associated with Sanborn, Jackson & Rice in the general practice of law in the Endicott Building, St. Paul. Since December 2, 1963. (Mr. Rice of that firm teaches Constitutional Law at William Mitchell.) On January 15, 1964, Joyce was appointed Special Municipal Judge of Maplewood, Vadnais Heights and Little Canada, Minnesota by Minnesota Governor Karl Rolvaag.

Robert O’Neill of St. Paul is now a partner of Clayton Nelson, practicing in New Prague, Minnesota. He holds a B.S. degree from Wisconsin State College at River Falls. O'Neill is moving to New Prague this spring with his wife.

John M. Sands became an associate with Robbins, Davis & Lyons, Minneapolis, on March 1, 1964. Wayne A. Vander Vort, 27, formerly with the trust department of the First National Bank of Minneapolis, became associated with Warner, Ratelle & Hennessy in the general practice of law on March 1, 1964 Offices are in the Rand Tower, Minneapolis Images Photographs of Carl Granrud, Stacey Gifford, Herbert Somermeyer, Thomas McCann, Gary Flakne, Peter Frenzer, Thomas Nikolai, Martin Joyce, Wayne Vander Vort