United States Supreme Court Official Transcript.

Michael FITZGERALD, Treasurer of Iowa, Petitioner,

RACING ASSOCIATION OF CENTRAL IOWA, et al.

No. 02-695.

Tuesday, April 29, 2003.

Oral Argument

Washington, D.C.

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:15 a.m.

APPEARANCES:

THOMAS J. MILLER, ESQ., Attorney General of Iowa; Des Moines, Iowa; on behalf

of the Petitioner.

KENT L. JONES, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the United States, as amicus curiae, supporting the Petitioner.

MARK McCORMICK, ESQ., Des Moines, Iowa; on behalf of the Respondents.

*2 CONTENTS

ORAL ARGUMENT OF THOMAS J. MILLER, ESQ. On behalf of the Petitioner ... 3

KENT L. JONES, ESQ. On behalf of the United States, as amicus curiae, supporting the Petitioner ... 17

MARK McCORMICK, ESQ. On behalf of the Respondents ... 26

REBUTTAL ARGUMENT OF THOMAS J. MILLER, ESQ. On behalf of the Petitioner ... 50

*3 PROCEEDINGS

(11:15 a.m.)

CHIEF JUSTICE REHNQUIST: We'll hear argument next in No. 02-695, Michael Fitzgerald v. Racing Association of Central Iowa.

General Miller.

ORAL ARGUMENT OF THOMAS J. MILLER

ON BEHALF OF THE PETITIONER

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

The Iowa Legislature, consistent with the Equal Protection Clause, can charge different tax rates for its riverboats and its racetracks for a number of legitimate State interest reasons, including and especially the one highlighted by the district court judge here, the promotion of the development of river communities.

In 1983, Iowa broke ground and got more friendly with gambling and allowed horse racing and dog racing in our State.

QUESTION: It's called gaming if--if you favor it.

MR. MILLER: I--is there a neutral term, Your Honor?

In--in regard to gaming, one of the main purposes of having horse and dog racing was to develop a *4 new subset of our agricultural economy, the breeding, training, and raising of horses and dogs. And that succeeded. It turned out to be about a $50 million industry.

Six years later, with visions of Mark Twain in the background and the two incredible rivers in America surrounding our State, the Mississippi and the Missouri, the legislature authorized riverboat casinos, riverboat gambling. And one of the main purposes there was tourism, economic development for the river communities and riverfront development. In a very short time, there were $17 million worth of investment along the various riverfronts.

A few years later, though, neither gaming enterprise was--was doing as well as they would like, indeed, not doing--not doing well at law.

In regard to the riverboats, the problem was, well, Iowa had this sort of, in a way, naivete maybe about betting. They restricted the amount of bets on riverboats. It could only be a $5 bet and one couldn't lose more than--more than $200 in one setting. Well, Illinois had a different view and had no limits and were starting to succeed competitively.

The--the situation with the racetracks was more severe, that economically it just wouldn't work to *5 have racing, either horse racing or dog racing alone. So Iowa became the first State in the Nation to allow the sort of the-- the golden goose of gambling, slot machines, at racetracks.

QUESTION: So now the bulk of the earnings are from slot machines rather than the races. Is that right?

MR. MILLER: That--that's right, Your Honor. Indeed, really the slot machines support the--support the racing.

QUESTION: But under your scheme, I take it the highest tax rate for slot machine income at racetracks is 36 percent versus 20 percent for slot machines on riverboats.

MR. MILLER: That--that is correct, Your Honor. And that was provided on a--on a graduated basis. Actually in next year it's--the 36 percent would be--would be reached.

QUESTION: And you want to offer a rational basis for that scheme?

MR. MILLER: Yes. Yes, we do, Your Honor. And what--what we say is that the development of the--of the riverboats could be rationally preferred by the--by the legislature because of riverboat development, because of economic development on the--on the rivers.

Additionally, the--the district court found *6 that the additional rational basis could be sort of supporting the riverboat enterprises as a--as an

industry, promoting riverboat history.

Also, we argue that there was a problem of riverboats leaving the State, that three out of six in the previous--previous to 1994, the legislation year, had-- had left the State.

QUESTION: Well, because of that legislation, the Delta King left the Sacramento River and it's gone up to the Mississippi.

MR. MILLER: Well, that was the next purpose, Your Honor, to try and get other boats to--to come to Iowa, and apparently--

QUESTION: They're--they're saying--and maybe there's--I take it from their brief that, look, there's never been a tax scheme like this. Obviously, a State very often would--would tax at a different rate a handsaw and a screwdriver, but we've never heard of a State that said when you sell a screwdriver, you pay 5 percent tax if you sell it in Des Moines and a 3 percent tax if you sell it in Dubuque, and if it's sold by one kind of a person, they sell 8 percent tax, and it's all the same screwdriver. So they're saying there's never been a-- really a tax system like this anywhere, and--and they better have some pretty good reason or--or *7 something.

I mean, now--so is all that true, that there never has been a system like that, saying the same screwdriver, everything identical, all it is is it's sold in different parts of the State or by different people, and--and you have to

pay a different tax?

MR. MILLER: Well, I think there's been many times where the--the taxpayer has been--been treated differently even if--even if the transaction is the same.

QUESTION: Like what? Like what?

MR. MILLER: Sort of the--the enterprise zones, for instance. Communities are-- are given favorable tax rates all the time for economic development purposes and that's what's here. And--

QUESTION: Typical--typical sales tax. You know, the State may tax a barber's income at a different rate than a hairdresser's and yet they may use the same stuff.

MR. MILLER: Yes. Yes, Mr. Chief Justice, that--that would--that would be another example.

And, you know, the State has great latitude in the taxation area and justifiably so because there are so many complexities that--that that be available to the State.

*8 QUESTION: Do--do you agree, at least to the extent the respondents say, that there's no other State in which slot machines are taxed at a different rate depending on their location, that this is unique to Iowa?

MR. MILLER: I--I think as far as I know, that's--that's the--that's the case. Slot machines typically are not in multiple purposes--not multiple places like

Iowa. Typically they're in--they're in casinos. So there's not--not a lot of apt comparisons.

But you know, this is--this is a--a question for the legislature. When there's no suspect category or fundamental right available, the legislature has--has a great deal of--of discretion. And the enterprise--the purpose of the enterprise is different. The economic development as opposed to the agricultural, for instance. When that--when that is the case, the--the legislature really has-- has a great deal--

QUESTION: So I push their argument or am I imagining--I'm trying to put it the strongest way. Look, cosmetologists and barbers do different things, and moreover an enterprise zone is a special part of the State that's not exactly the same. Something different is going on there. Here it's slot machine income. Nothing different is going on. Nothing.

MR. MILLER: Well, there is difference--

*9 QUESTION: I--I--yes, go ahead.

MR. MILLER: There is difference in--in the enterprise. One has slot machines and table games. The other has slot machines and--and racing. But here you have a--a series of communities in--in eastern Iowa and then in western Iowa along the rivers that had suffered loss of manufacturing jobs. This was--this was an effort, a legitimate effort, on the part of the legislature to advance a new

industry, a tourism industry, on the two rivers.

QUESTION: As I understood it, didn't--didn't the tax on the--the higher tax on the racetracks come later?

MR. MILLER: It was--it was phased in, Your Honor. That--

QUESTION: And I can't quite understand how imposing an extraordinarily high tax on racetracks is suddenly going to provide a benefit for riverboats.

MR. MILLER: Well, the legislature, of course, had the--had the discretion to-- to have them both at 36 percent. The--the benefit of the--to the--to the riverboats was that--that they didn't go to the higher rate that--that the-- that they did for the--for the racetracks. It's sort of a chicken and egg problem, but--but they're spared that--that higher rate and--and *10 that's--and that's an appropriate benefit.

QUESTION: It's across-the-board rate for everything that goes on at the riverboat, right? It's a 20 percent rate, whether its roulette or card games or dice, it's all 20 percent.

MR. MILLER: That's it. The--

QUESTION: For the race, there's a great disparity between the parimutuels. It's only what, about 5, 6 percent?

MR. MILLER: That's right, Your Honor. There's a--there's a very favorable rate for the--for the racing at the--at the racetrack. So it's a--in a sense it's

a--it's a blend of rates between the two. Again, understandably so--

QUESTION: Is the rate--is the rate for taxing other gaming activities on the riverboats different from the slot machines on the riverboats?

MR. MILLER: No, Your Honor, it's not. It's--it's the same. It's the same rate. So you have--you sort of have 20 percent there as opposed to, say, as was just pointed out, 4 or 5 percent for the racing at the--at the racetrack.

QUESTION: So it's administratively easier to calculate if you have all one rate for the riverboat?

MR. MILLER: It would be--it would be more *11 easily to--to calculate and more efficient.

QUESTION: You say the riverboats, obviously, are located on the rivers which bound Iowa on the east and on the west. How about the racetracks? Are they scattered throughout the State?

MR. MILLER: They are scattered throughout the State. Two of them are on the-- turned out to be on the rivers. But the largest one, the premier one, Prairie Meadows, is in the Des Moines area in--in central Iowa.

QUESTION: Add that if we looked into this at any depth at all, we'd discover this originated from a legislator who hated racetracks and loved riverboats and was trying to kill the whole thing. And then they say that besides that, there was a report of a committee that said all this enterprise zone--we don't think

that's so, et cetera, et cetera.

MR. MILLER: Well, I mean, shocking that--that a legislator on--on--in riverboat country would try and help the--help the riverboats. I mean, that's, for better or worse, part of the--part of the legislative process, always was and always will be. And--and courts can't be sort of cops to--to make sure that--that they--that they do not do that.

QUESTION: Well, under--

QUESTION: If we ever look to the real reasons *12 for things, it would be a disaster, wouldn't it?

(Laughter.)

MR. MILLER: Yes. Well, it's, you know, the old adage about sausage, making sausage, that you shouldn't watch it, that--

QUESTION: But the Iowa--the Iowa Supreme Court seems to think it could look to what was the real purpose, not the purpose that we could conceive. Lots of nice purposes like the riverboat drifts away and the racetrack is--

But you said something in your reply brief that--that really surprised me. It seems to me that if we say--if you're talking about Federal equal protection, this is an area in which the leeway for the legislature is the widest that there is. But couldn't Iowa then say, okay, we're just doing this under Iowa equal protection, and we can make that whatever we want? And for us, the real

purpose counts, not the conceivable purpose.

MR. MILLER: Yes. The--you know, the--the legislature--the court could have said that they were diverging from--from the standards of this Court.

QUESTION: But you said they couldn't do that on remand. On page 6 of your reply brief, you said that the Iowa Supreme Court cannot reconsider the State court decision in order to subsequently establish an adequate *13 and independent State ground. Why couldn't it?

MR. MILLER: Well, our argument is--is, Your Honor--and we know we're--we're into sort of a little bit new territory here. But our argument is that--that the court has made a decision that the--the analysis--a clear decision that the analysis is the same under the Federal and the State constitutional provision. If that analysis, judged by a higher court, is determined to be wrong, then that would--would seem perhaps to settle it.

But more significantly, the--the respondents didn't argue below that there was a separate analysis, that--that they should look at it separately.

QUESTION: But they could. I mean, nothing would foreclose them on remand or the Iowa Supreme Court itself.

MR. MILLER: Yes. It's--it might not, but we argue that--that they sort of waived that argument, that they didn't argue that in--in the first time through, that they--it was a different analysis. They conceded, like everybody

else, and assumed that it was the same analysis.

QUESTION: All our opinion would say, if we reverse the Supreme Court of Iowa, was remand it for further proceedings not inconsistent with this opinion. And so certainly, so far as our remand order is concerned, *14 the Supreme Court of Iowa is free to do whatever it wants so long as not--as it's not inconsistent with our opinion.

MR. MILLER: I understand, Mr. Chief Justice. Maybe I'm making my argument too soon and--and will--

QUESTION: I doubt if you'll have any better luck with it before the Supreme Court of Iowa.

(Laughter.)

MR. MILLER: Well, we--we will--we will try I--I assume.

What--what we're saying here is that--that there are multiple legitimate State purposes available that are well within the zone of Nordlinger and the related cases that have been before this Court, that--that this is comfortably a legitimate State interest, a number of them, most specifically the development of the--of--of the river communities. And that's--that's consistent--

QUESTION: Would it make any difference in your analysis--I don't know if this is true or not--but if the legislative history, if you had a complete record of all the debates and everything else, and it was perfectly clear that the

hypothetical reasons you advance were definitely not the reasons that motivated the particular tax rates, that they did it just, say, to get even with *15 the racetracks because somebody was unhappy with something they had done in the past or something like that, would that make any difference?

MR. MILLER: Well, I--I don't think that there's--there would be sufficient legislative history to foreclose rational speculation.

QUESTION: No, no. Take his hypothetical. There is.

QUESTION: I'm assuming that there is, that--that there's a reason out there that--that--none of the reasons that you advance were, in fact, considered by any of the legislators. In fact, they rejected them. They thought, we really don't want to help the riverboats. What we want to do is do something to really penalize the racetracks because they're an immoral business, they're even worse than gambling on the rivers. And that's why they're doing it.

QUESTION: And they put that right in the preamble to the act.

QUESTION: Would that make any difference in your analysis?

MR. MILLER: I--I think that that kind of--kind of history would not, in a rational speculation case, that--that--

QUESTION: I guess my question is, is it *16 rational speculation when you know it's not true?

(Laughter.)

MR. MILLER: Well, I--I suppose not.

QUESTION: Well, it's usually not true. I mean, usually these things are done for the self-interest of--of legislators from various districts, and--and as long as there could be a rational--I--I would have--I'm surprised it took you so long to answer that question.

(Laughter.)

MR. MILLER: I wanted to be thoughtful, Your Honor. But like--we get back to-- to the--the rough and tumble of the legislative process as--as you suggest, Your Honor, is such that the courts don't--don't review that, don't--don't--

QUESTION: But isn't--isn't that exactly really the point? The courts just don't review it. And unless you get to--to some fact pattern that--that gets you a--a higher level of scrutiny, it's not so much that we're engaging in rational basis scrutiny. We're just saying we can't touch the political process unless you get yourself into a suspect class. Isn't that really what we're saying?

MR. MILLER: That's--that's pretty much--pretty much what's--what's being said here and--and how the cases have been interpreted. And is--and it *17 makes--makes a lot of sense because like you--like you suggest, Your Honor, when there's--there's not a fundamental right or a suspect category, that's the pure legislative authority and that's where democracy kicks in our--

in our country, for better or for worse, and the assumption is that if they make a mistake, democracy later will--will catch that mistake.

Your Honor, I'd like to--to now turn it over to--this has been my first argument, so I refer to him as my safety net.

(Laughter.)

MR. MILLER: Kent Jones from the Solicitor General's office, and reserve what time is remaining after he is done.

QUESTION: Very well, General Miller.

Mr. Jones.

ORAL ARGUMENT OF KENT L. JONES

ON BEHALF OF UNITED STATES AS AMICUS CURIAE,

SUPPORTING THE PETITIONER

MR. JONES: I'd like to thank counsel. And Mr. Chief Justice, and may it please the Court:

Taxing decisions are like spending decisions because they affect the State's economy, as well as its balance sheet. In recognizing that fact, this Court has consistently upheld the--the--has consistently held *18 that a State's desire to promote or foster one type of business over another or even to promote or foster one mode of doing a business over another is a rational basis that supports taxing the one and exempting the other.

For example, in State Board v. Jackson in 1931, this Court held--upheld a tax differential, a different tax treatment, of chain stores versus single enterprise retail stores. Even though these businesses did essentially the same commerce, the Court held that in the State's exercise of its broad authority to govern the economy of the State, it can prefer one mode of doing the same business over another.

And that same rationale has been applied by this Court in numerous contexts involving tax distinctions between, for example, warehouses located near railroads and warehouses not located near railroads, between laundries that are operated by hand and laundries that are operated by machine, and even between individuals and corporations that are conducting identical businesses.

QUESTION: What about--what about slot machines owned by Republicans versus slot machines owned by Democrats?

(Laughter.)

MR. JONES: Assuming that we're still talking about State laws--

*19 QUESTION: No, that's exactly--I'm serious about--

MR. JONES: Assuming we're still talking about State laws, I would have to ask myself what would be the rational basis. The rational basis--

QUESTION: The rational basis is the Republicans have a majority in the State legislature.

(Laughter.)

MR. JONES: Well, that might explain--the difference I think between your hypothetical and--and where I'm trying to come from is that the rational basis has to be related to a legitimate State purpose. There's a--a legitimate State purpose in fostering certain kinds of commerce and suppressing others.

QUESTION: What about--what about slot machines owned by farmers and slot machines owned by city dwellers?

MR. JONES: It's--it's hypothetically conceivable and that's the question that this Court asked itself under--under FCC v. Beach. Is there a conceivable State interest that would justify that distinction? And obviously, that--the fact that there has to be one doesn't mean there always is one, and I'm not standing here saying, well, every imaginable distinction is justifiable. The distinction in this case *20 is simply between--is whether the State could conceivably have preferred riverboats over racetracks.

QUESTION: What--what have we held wasn't justified outside of a suspect category situation, such as--I don't mean Republicans and Democrats. You're into First Amendment suspect categories I suppose. What--what have we ever held was--was irrational that didn't involve race or--or, you know, political discrimination or something like that?

MR. JONES: The--there's a case that Justice Ginsburg could tell us about. She

argued a case where this Court--I think it was called Weinberger v. Wiesenfeld, a case--not a tax case. It was a Social Security benefits case, and the Court held that the distinct treatment of--of the surviving spouse's ability--

QUESTION: It's a suspect category, and I mean, we're into sex discrimination.

MR. JONES: Well, it--it was described by the Court as--as a rational scrutiny case, and it said there was no legitimate State interest because in--in the context between treating differently male and female surviving spouses, in light of the objective of that statute, which was to protect the--the children of the couple, there was no rational basis to prefer one rather *21 than the other.

That is--that is the only case that I can cite to you where this Court has applied a rational basis test to strike down a Federal statute. There may well be others.

QUESTION: There are others, but it's--it's the--it's quite interesting, is--is there a--there are two sets where they're struck down. One is what you might call the heightened rational basis which are normally not economic regulation, but there was the mental--the mental--the building, you know, the--of the home for the mentally disturbed or whatever. And then there are the ones that are out-of-state, which are Dormant Commerce Clause cases. But is there any which is a pure rational basis in an economic area? You think the answer to that is

no, and I can't think of one.

MR. JONES: I--I can't think of one, but it's not because there is no rational basis test. It's because in applying this test, the Court is very deferential in recognizing that States have intentionally been given this authority over regulating State commerce, and that these kinds of choices are left to the legislative branch.

QUESTION: Mr. Jones, when you talked about Federal tax, I thought you were going to say the one that you have in your brief, Martz against Commissioner.

*22 MR. JONES: Well, I--we understand that to have been a case where the-- which you also argued I believe, unless I'm remembering the wrong case--

QUESTION: That was--that was--you left out that cert was denied.

MR. JONES: Ah.

(Laughter.)

MR. JONES: I made another mistake in the brief that I'll get to later if I have a chance. But that was--

QUESTION: These are all cases she won or lost?

MR. JONES: I'm afraid--

(Laughter.)

QUESTION: You didn't--you didn't make the mistake of citing one that she lost,

did you?

(Laughter.)

MR. JONES: No, I don't think so.

QUESTION: There are no such cases.

(Laughter.)

QUESTION: Oh, yes, there is and it was a tax case. It was a State tax case.

(Laughter.)

MR. JONES: But--but the--it was--it was a tax case. But in that case, the Court--you were--the Court was persuaded that the distinction was invidious. *23 The Court didn't say that a different treatment of unmarried men and unmarried women in this particular deduction context was irrational. The Court said it was invidious. So I believe that the only tax--Federal tax case that has--well, I don't believe there is a Federal tax case that this Court has decided that violated--failed to meet the rational basis test.

The--the court below made--the Iowa Supreme Court--where it went wrong was looking to only one of the purposes of the statute. There were many purposes. They looked to just the purpose of whether it aided racetracks, which just kind of strikes me as an unrealistic way to look at what the purpose of a legislation that imposes a tax on racetracks would be.

But to answer a question that Justice Stevens raised earlier, when--in

applying the rational basis test, the courts are to look to any plausible or conceivable theory. And--and in FCC v. Beach, as well as other cases we've cited, in applying that test, the Court has said that you don't look--you're not bound by the facts of the particular case. And indeed, you're not supposed to make fact findings as to what these legitimate interests might be. Instead, you're supposed to allow the State any rational legitimate interest that the Court might--might be able to perceive and--and nail down *24 that point in that case by saying that--and I'm quoting--it is entirely irrelevant whether the conceived State purpose actually motivated the State's decision.

So you don't have--the State doesn't have to show that these rational, legitimate State interests, in fact, motivated the decision. It doesn't have to show that they are, in fact, the basis for the decision because this is a Federal constitutional question. This is not a question of interpreting the State law. If we wanted to interpret the State law, we'd want to know what its purpose was, but that's not this task. In looking at the constitutional limitation, it only--it only takes effect if the State has no conceivable or plausible legitimate interest in the classification.

One other point to mention briefly is they say Allegheny Pittsburgh points another direction. Allegheny Pittsburgh was the rare case that this Court said in Nordlinger--was the rare case where there was a West Virginia State

constitutional provision that said all assessment--all property taxes will be levied based on market value. A local assessor in that State didn't like that and he--he assessed taxes based on acquisition, which is prices, which is the last sale price of each property, and that resulted in--in a differential treatment of each taxpayer. And what this Court held in*25 --in Allegheny Pittsburgh was that because the State constitution prohibited any taxation other than market value, there was no legitimate State interest to justify the--the distinguishing tax rates.

Well, that case doesn't have any application here because there's no provision in the Iowa constitution that says that the Iowa Legislature cannot, in regulating commerce, prefer or promote riverboat traffic and riverboat--

QUESTION: Do you read Allegheny as saying that the--if the State had enacted exactly the scheme that was being administered there, that it would pass equal protection review?

MR. JONES: It--well, in Nordlinger, the Court--if I understand your question right, in Nordlinger, the Court upheld an acquisition--last sale price tax scheme I think in California where there was no constitutional provision in California that required market value taxation.

QUESTION: Would the answer in this case be different if the Iowa Supreme Court told us that the Iowa constitution requires that all slot machines be taxed

alike?

MR. JONES: I think that you would make--I think in that--in looking for a legitimate State *26 interest, you would make an inquiry into whether the Iowa constitution prohibited preferring riverboats--preferring riverboat commerce because a legitimate State interest for Federal purposes--and the Court made this very point in response to a dissent of yours in--in the opinion by Justice Brennan in the Minnesota v. the Clover Leaf Creamery case.

QUESTION: Thank you, Mr. Jones.

Mr. McCormick.

ORAL ARGUMENT OF MARK McCORMICK

ON BEHALF OF THE RESPONDENTS

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

I think the Iowa Supreme Court in this case, as this Court will determine as it reviews the opinion, addressed two questions, not merely one question, in this equal protection challenge.

The first question the court addressed is what did the legislature have in mind in enacting this legislation. In doing so and in answering that question, the State court was doing what State courts routinely do, interpreting State law.

Once having determined the meaning of State law, as was its prerogative, the

court then moved to the second question which is the only question that the State and the *27 United States have argued here, really, which is the equal protection issue.

We think the first question has to be answered before you jump to the second.

QUESTION: Well, what about the--our decision in FCC v. Beach, which was just referred to earlier, where it says it really doesn't make any difference what the actual facts were?

MR. McCORMICK: The--the decision in Beach, as I understand it, did require the establishment of a legitimate State purpose under the FCC provision that was at issue. In fact, the court of appeals had sent the case back to the FCC: Tell us what you had in mind, and the court of appeal--or the FCC said, we can't think of a better reason than was given by Judge Mikva in his concurring opinion, and this Court accepted that as being a plausible basis then for the distinction that was at issue in that case.

QUESTION: But we have said that any conceivable rational basis is enough. We don't care what Iowa really had in mind.

MR. McCORMICK: I think you do, Your Honor, and I think the case that was mentioned earlier, the Weinberger case, is an illustration of how it makes a difference. In that case, as the Court ultimately found, *28 there was gender discrimination which was inappropriate in dealing with the issue of

survivorship benefits as to spouses, and the argument that was being proffered by the Government in that case was, this is okay because this statute was intended to take care of women who have trouble, when they are widowed, getting by in the work place.

QUESTION: If you think gender discrimination cases aren't different, you're just wrong.

MR. McCORMICK: No, Your Honor. I--I am not saying that the analysis was the same, but I am saying that the Court looked to the actual intent as it was shown by legislative history.

QUESTION: Some legislatures--some legislatures don't have legislative history. What is to be done in those cases? What, do you--you convene a trial court to take testimony from legislators and others to find out what was the actual intent of the legislators?

MR. McCORMICK: What is routinely done in Iowa is what we did in this case, which is--and what courts routinely do at the State level, at least what's done in Iowa, is that the court looks at any available materials that would bear on the concerns--

QUESTION: There are no materials. I mean, some States don't have legislative history. They just don't *29 keep it.

MR. McCORMICK: That's right.

QUESTION: What do you do in that case?

MR. McCORMICK: I'm telling you.

QUESTION: Do you call witnesses?

MR. McCORMICK: We don't have--we do not have records or transcripts of legislative debates at committee hearings.

QUESTION: So were--were--was testimony taken from legislators asking why did you vote for this bill?

MR. McCORMICK: No, Your Honor, but--

QUESTION: Why not?

MR. McCORMICK: --affidavits--excuse me. But affidavits were obtained that explained what the concerns were that were being addressed. We have a full record. This was a summary judgment motion in which we put in information that was available to the legislature.

QUESTION: Affidavits from legislators?

MR. McCORMICK: Yes, Your Honor, but not saying why they voted as they did, but explaining the legislative history. And the Iowa court routinely, in dealing with the meaning of State law, has accepted the kinds of materials that we put in the summary judgment record.

QUESTION: Why didn't they explain why they *30 voted as they did? If, as you say, the--the intent of the legislature is the criterion, why didn't you

ask them, why did you vote the way you did?

MR. McCORMICK: Because Iowa, like this Court, suggests that an individual legislator isn't competent to say that, but Iowa, like this Court, will permit legislators to explain legislative history, which is what was done here. That's what we did with these legislator affidavits. The Iowa used the kinds of materials that States use when they--

QUESTION: The whole is the sum of its parts. If you're really interested in why the legislature did it, you ought to get affidavits from every legislator saying this is why I voted for it, and if 51 percent voted for it for a certain reason, that was the reason.

MR. McCORMICK: In a State like Iowa, where we don't have the kind of information that's available from Congress, what we do is we ask our court to determine what the legislature intended as it must in many, many cases, including this kind of case, and offer the court the kind of information, the background information that's available.

QUESTION: If that's how it's done in Iowa, it can be done that way. This Court, when it's dealing with tax cases, it doesn't do it that way. It doesn't look for *31 the actual purpose.

And in--and in the Wiesenfeld case, the whole thing was driven by it being a gender classification, and the Government's argument was this was pure favor to

women. And the argument is, no, that was not the actual purpose.

MR. McCORMICK: This Court has said in several cases--it has said in the Nordlinger case and also in Heller against Doe--that even in a rational basis case, to be plausible, a justification must not be precluded by the record.

And, for example, that is how Nordlinger distinguished Allegheny Pittsburgh because Allegheny Pittsburgh had determined that the West Virginia property tax scheme was a market value valuation or appraisal system. And in Nordlinger, the position was being advocated, well, this case is governed by Allegheny Pittsburgh. You can't have an acquisition value system like California. The Court distinguished Allegheny Pittsburgh by saying that the record in Allegheny Pittsburgh precluded the legislative goal of having a market value--excuse me-- having an acquisition value tax system. That's how the case was distinguished.

QUESTION: But if you're looking at what--what the legislature did, they did one thing great for the *32 racetracks. They gave them permission to have these slot machines, which they didn't before, so they're preferring the racetracks by giving them this, but they say not too much because we're going to let you make money from these slot machines, but not too much. We're going to take a piece of it.

So you like what they did, the permission to have the slot machines, but then say, ah, but once--they have to give us as sweet a deal as they gave the

riverboats. They didn't have to give you anything. They didn't have to let you have the slot machines.

MR. McCORMICK: Well, Your Honor, our argument about that is that they--they threw us a lifeline when we were faced with economic disaster, just as they were throwing a lifeline to the riverboats, but it had an anchor attached to it. What they did, of course, was have a 2-year moratorium before the first escalation of tax occurred and they provided for a total of 10 years before the 36 percent is effective. It will be effective next year.

QUESTION: But it was--it all came in in the same legislation, didn't it--

MR. McCORMICK: That's correct, Your Honor.

QUESTION: So they gave you something you never had before and it was pretty good, but you didn't--

*33 MR. McCORMICK: The Iowa Supreme Court said what they did by that legislation was put us in a class the same as the riverboats with respect to slot machines, which was the main activity at both--both venues, and that they treated us differently by imposing this draconian--

QUESTION: Well, then to treat you the same, I think that they would have to raise the parimutuel betting from 5 percent, whatever it was, to 20 percent.

MR. McCORMICK: Your Honor, the record here shows that parimutuel betting has

invariably been a losing proposition at the tracks, and the legislature, when it passed this statute, specifically and expressly required that the riverboats use the revenue first to pay their debt, because they were in terrible circumstances, but secondly to subsidize the purses at the parimutuel betting and to promote the--the horse industry. And such--these are mandated goals which were--which the legislature required.

QUESTION: That the riverboats do that or that the tracks do that?

MR. McCORMICK: No. That the racetracks do that.

QUESTION: Oh, okay. You said the riverboats.

MR. McCORMICK: I'm sorry. I meant the *34 racetracks are required by the statute to--to do those things. Parimutuel betting has--has never been a source of net revenue in--at least since the bankruptcy of the main racetrack in 1992.

QUESTION: As I understand, the riverboats wouldn't make money either if they didn't have the slot machines.

MR. McCORMICK: Well, that's certainly arguable. They've had them since they were initiated. Their problem in 1994 was getting rid of the betting and loss limits.

But the--the Iowa court--and it's our contention that this was a matter that was within the prerogative of the court--in ascertaining the legislative intent in this case, said it was not the intent of the Iowa Legislature to benefit

riverboats at the expense of the racetracks.

QUESTION: So how does this work? I mean, I thought there was a distinction between your trying to show in a case like this that the rational purposes that are advanced simply are not served--that's a factual matter. And I take it that's Allegheny. They showed that the--that this wasn't a way to bring about what they claimed.

MR. McCORMICK: Yes.

QUESTION: All right. But it's not open to you *35 to show that the legislature didn't really have that motive for the reason that if the courts permitted you to show it, there would be no end to that. People would be arguing about legislative theories in State cases like this forever.

So if that's right--I--I mean, you're not--I don't think you can show the first. Maybe you can.

MR. McCORMICK: Well, our contention is that--

QUESTION: Yes--is you can.

MR. McCORMICK: --this Court left that open to us in Allegheny Pittsburgh.

QUESTION: Yes. I think it did leave it open, but you see, they come in with some rational purposes, and you think you've showed here that--that they don't--that this--this particular statute could not serve those purposes as a matter of the world of fact?

I mean, one is, for example, they say if we don't have a lower rate--you've heard it--they'll go off to some other place, and they have one that went to some other place. And you don't deny they went to some other place.

MR. McCORMICK: Well, the question is not only legitimacy of a goal, but whether there is a rational relationship and whether the classification involved is reasonably related to any differential treatment.

*36 As in Allegheny Pittsburgh, our complaint here is a comparative one. It's the comparative treatment for the same activity essentially in the same place because we've got racetracks in two of the cities that--that are the cities where two of the three riverboats were in fact, and--and on the same activity, which is what the Iowa Supreme Court found when it determined that for classification purposes, it saw no difference except that one was a facility that was fixed and the other floated.

And then having--having made that determination of the equal situation, the court looked at differential treatment too and said--

QUESTION: But there was another factor that--that was part of it, isn't it? There was a 20 percent rate across everything, all the kinds of games that they have on the riverboat. So that's nice and administratively convenient. You don't want to have one rate for the slot machines and another one for blackjack.

MR. McCORMICK: Yes, Your Honor. And that rate was in place in 1994. There wasn't any change in the tax paid by riverboats. The legislation imposed for the first time, because it authorized for the first time, a tax on slot machine usage and activity at the racetracks.

QUESTION: May--may I address a--a slightly different argument that you were making, I think you were *37 making a minute ago? And that is, now--it had two premises.

Number one, you said our own cases show that a--a conceivable rational basis cannot be relied upon when the record indicates that in fact that was not the basis for the legislation. So fact limits what is--what can be considered as conceivable.

Number two, you said a moment ago that the Iowa Supreme Court made a determination about the--the purpose of the statute, and--and at least they determined that the purpose of that statute was not to aid riverboat gambling.

So I take it your argument is you can't argue that this differential treatment is rationally related to the promotion of--of riverboat development or river development because the Iowa Supreme Court has definitively determined that that was not the case. Is that a fair statement?

MR. McCORMICK: That's certainly part of our argument, yes, Your Honor.

QUESTION: All right.

My--my question I guess is this. There is no question that the Iowa Supreme Court in the construction of the Iowa constitution can approach matters that way. If this Court approaches matters that way, then in effect *38 we're going to have two different methodologies, one for Federal cases, I guess, and--and one for--for State cases. And we're going to have to take every State case subject to fact determinations made by the State courts, and that's going to limit the application of this conceivable rational basis test.

Why would it not be wiser for us to say, just to keep the systems running smoothly, look, we are not going to be bound by State court determinations of legislative intent or purpose? The State courts are perfectly free to do that under their own constitutions, but when it gets to us, we will not accept, for example, the determination in a case like this by Iowa that the purpose was not to aid riverboat gambling. Why wouldn't that be a sensible way for us to--to go, leaving the State courts to run their systems any way they want to?

MR. McCORMICK: We think, Your Honor, that the question of the meaning of State law has always been within the domain and prerogative of--of the State courts.

QUESTION: But this isn't a question of State law. It's a question of State fact in applying a Federal law, i.e., the--the rational basis scrutiny under the Federal--the Equal Protection Clause.

MR. McCORMICK: Yes, Your Honor. I'd invite *39 your attention to

Metropolitan Life Insurance Company against Ward, which came out of Alabama, dealt with burdensome taxes placed on out-of-state insurers that wanted to do business in Alabama. That case, like this one, involved a summary judgment proceeding where information was put into the State court record. The State in that case advanced, as I understand it, something like 17 reasons as rational bases for that differentiation.

Now, this Court reviewed two of them because the State court held that they were valid justifications under that summary judgment record. This Court reversed, finding that those justifications were not valid or supportable. They were not rational. But this Court did not go further than to look at the other proffered justifications by the State. The Court sent the case back for completion of the summary judgment proceedings.

And what was being done in that Alabama case is exactly what we did in this case by looking at the summary judgment record.

QUESTION: I thought that was--involved interstate discrimination against out- of-state actors.

MR. McCORMICK: That was the--that--that was the issue that was being reviewed on equal protection--

QUESTION: But here you have everybody internal *40 in the same--the same State. So I think that's a different case.

MR. McCORMICK: Excuse me, Your Honor?

QUESTION: Well, you're not discriminating against out-of-staters, which is a Federal concern.

MR. McCORMICK: Yes, Your Honor. I'm not talking about the--the equal protection issue there. I'm talking about the manner in which the record was determined and the State court was given the prerogative of telling this Court what it determined the purposes were of the law.

QUESTION: But if you're--if you're right about how Iowa goes about doing things, then you go back and tell the Iowa court, the Supreme Court has this any conceivable purpose test. You have what's the real purpose test. So now say we'll apply our own State notion of what equal protection is and--and that's the end of it.

MR. McCORMICK: We're going to say that we thought the--this Court would say if the record showed, whatever the record was, in this case our summary judgment record, that the rational speculation by the Government is not supported by the realities of the situation, then that the court--that sort of justification is not plausible. We thought that's what this Court's view was.

*41 We certainly will argue to the Iowa court that it is within its prerogative initially first to decide what the legislative purposes were, as it does in many cases and as this Court has in many cases respected when it is

doing Federal constitutional review where the meaning of a State law is a threshold issue. We'll be then inviting the Iowa court, if this Court remands the case, to reconsider the case under the Iowa constitution.

QUESTION: Mr. McCormick, why isn't there a categorization problem in this case? I mean, there is no Iowa law pertaining to slot machines in particular. There is a law taxing table games at--the revenues from that, at 20 percent. Right?

MR. McCORMICK: Yes, Your Honor.

QUESTION: Why isn't it perfectly reasonable to look upon these laws this way: Iowa is taxing a business which has nothing but table games at 20 percent on all the table games. It is taxing a business which has parimutuel betting plus slot machines at 5 percent for the parimutuel betting and 34 percent for the slot machines.

I mean, you certainly wouldn't be complaining if they taxed racetracks at a combined rate of 15 percent or--or a combined rate of--of 30 percent for that. Now you--you would have no complaint. So why does it make any difference if they simply, instead of picking one *42 percentage, charge 5 percent on the parimutuel and 34 percent on the slot machines? But they're two different businesses. One is just table games. The other one is horse--horse racing and slot machines. They're--they're different businesses. They're taxed

differently.

MR. McCORMICK: Well, the--at least the view of the Iowa court was that these two enterprises, the riverboats and racetracks, are engaged in the same business. They are in the same class. And singling one of those taxpayers out for differential treatment violates equal protection in the view of our court.

The--the--

QUESTION: Your court is entitled to--to view it that way from State law, but they were--they've said that State law mirrors Federal law, and just because they choose to look at it that way, that doesn't mean I have to look at it that way.

MR. McCORMICK: No, Your Honor. That's--that's certainly correct.

But in terms of the classification here, we think that the State court was warranted in finding that these two taxpayers are in the same class. Parimutuel revenues have--have not, from 1994--actually immediately preceding that and subsequently, ever been a factor in the revenues of racetracks except a negative *43 factor.

The table games--that's an advantage that the riverboats have over racetracks, not a justification for differential treatment for putting a heavier tax on the same activity at the racetracks.

QUESTION: It's an odd position when you say there was no obligation whatever

for the State to allow slot machines at racetracks, but if they allow it, they have to be as generous to the racetrack as they were to the riverboats. What didn't come in as a discrete item came in as part of the whole gambling operation. It is strange to say not only--once you give it to us, you have to give us the best deal.

MR. McCORMICK: We're not--we're not really saying that. We're saying that-- that any differential treatment cannot be of the magnitude that exists here and be consistent--

QUESTION: But you'd have no equal protection argument at all if they didn't let you have the slot machines.

MR. McCORMICK: That's correct, Your Honor.

QUESTION: Iowa--the Iowa court made the statement, as I understand it, that the Iowa Equal Protection Clause and the national Equal Protection Clause had identical requirements at least for the purposes of *44 this case.

MR. McCORMICK: What they said was that they applied the same analysis as this Court.

QUESTION: Okay.

Now assume, for the sake of argument, that we don't accept the analysis for purposes of Federal equal protection. Do you understand the Iowa decision to be that there is--despite that finding on our part or that conclusion on our part,

that there is no question that what they said in that opinion does reflect the Iowa Equal Protection Clause and the result that they reached will be and--and can be found on the basis of this opinion to be the result under the Iowa clause?

MR. McCORMICK: Yes, Your Honor. We--

QUESTION: So that what we do will make no difference in the--in the ultimate result in this case.

MR. McCORMICK: If the Iowa Supreme Court, if this case were remanded, determines through the use of the same analysis, the same result--

QUESTION: Unless they change their rationale, there is no question, as I understand it, on the basis of this opinion what the result will be. Is that correct?

MR. McCORMICK: Well, it--I sure hope so.

QUESTION: I mean, you're going to--yes. I mean, that's what I--

*45 QUESTION: They can't blame it on us.

QUESTION: No, that's quite right.

QUESTION: I mean, right now they're blaming it on us, and if they want to take the blame themselves--how--how are they appointed? Are they appointed or elected?

MR. McCORMICK: They're through a Missouri Plan appointed, Your Honor.

QUESTION: Missouri Plan appointed.

QUESTION: Well, the Supreme Court of Iowa in--in its opinion in this case said that the Iowa Equal Protection Clause and the Federal clause were the same or subject to the same analysis, didn't they?

MR. McCORMICK: Yes, Your Honor.

QUESTION: And I suppose if we decide that it's wrong on the Federal section, it goes back to the Supreme Court of Iowa, they could just as easily say, well, our--our State equal protection follows Federal equal protection. If the Supreme Court of the United States says the Federal is one, we're going to follow the Federal.

MR. McCORMICK: We think that the court has--

QUESTION: It's not foreordained what they will do.

MR. McCORMICK: No. You're--you're right, *46 Your Honor. I'm just--

QUESTION: So you think--you think that is open to them--

MR. McCORMICK: I think that--

QUESTION: --the way--the way they wrote it.

MR. McCORMICK: Oh, I think so. I think it would be available to the Iowa court.

QUESTION: Well, they'd have to eat their words.

MR. McCORMICK: Yes, Your Honor.

QUESTION: I mean, they'd have to say we're changing our law.

MR. McCORMICK: That's right.

QUESTION: And I doubt that this is the first--is this the first case in which they've said we--we follow Federal law on equal protection?

MR. McCORMICK: No, Your Honor.

QUESTION: I didn't think so.

MR. McCORMICK: In fact, there are cases where our court, in applying exactly the same analysis that this Court has done, has reached different results. We have Bierkamp against Rogers in our brief in which our court invalidated the Iowa--

QUESTION: Judges don't like to eat their words.

MR. McCORMICK: We're hopeful.

QUESTION: But as I understand it, they didn't *47 say, we follow the Feds. They said, they are identical.

MR. McCORMICK: Well, what they said is the scope and the import of the two constitutional provisions are the same. Actually part of that--if one looks at the history in Iowa, there's an old case, 1911 case, State against Fairmont Creamery. The Iowa court for years in interpreting the Iowa equal protection provision never made any reference to Federal law. And that case, for the first time in 1911, cited a couple of cases from this Court and said our decisions

are in harmony with the decisions of the United States Supreme Court.

I believe the evolution shows and history shows that what the court has done since then is for convenience, because of the availability of the precedent of this Court, said we use the same analysis. And we--we do the same thing in antitrust law. We do the same thing in civil rights law, even though we have some statutory differences.

But the court is still free to arrive at a different result under that analysis, and in this case certainly the court arrived at the decision that it did not only under the Federal Constitution but the State constitution.

QUESTION: It would mean they were wrong twice, both in their interpretation of Federal law and also in *48 their interpretation of Iowa law, right?

MR. McCORMICK: I don't believe so, Your Honor, because I think what they have said is that they use the same analysis. They don't say the same result is foreordained. This--our court, for example, doesn't follow the Lyon case on the issue of the good faith exception to the exclusionary rule. The court has been independent, treated State grounds as being adequate and independent in appropriate cases, even though generally, as it said here, it tracks with the Federal cases under similar provisions.

One thing I'd like to mention to you because I think it is a little bit of a misinterpretation of reality to suggest that these riverboats were created

in Iowa to--to sit on our border rivers. The statute involved and the implementing regulations will allow a riverboat in Iowa on any river in Iowa, on any lake in Iowa, or on any reservoir. And--and there is, in fact, as the record shows, a riverboat on a landlocked lake in southern Iowa such that for comparison purposes, comparing these racetracks, two of which are in river cities, and--actually all three of them in river cities, but two of them in river cities where there were also riverboats at the time of this--

QUESTION: How do you get the boat to the *49 landlocked lake?

(Laughter.)

MR. McCORMICK: It's an interesting process. One either builds it there or carries it with--

QUESTION: Humphrey Bogart. Humphrey Bogart gets it there I think.

(Laughter.)

MR. McCORMICK: Yes. It's African Queen.

And the notion that there is any particular navigation or--or sailing involved with these--with these methods of housing gambling activities is--is more imaginary than real.

I appreciate very much your attention. We believe that this Court in reviewing past State court equal protection decisions and more recently in the--in the tax area in Williams against Vermont and Hooper against Bernalillo County has--

has respected the--the determinations that have been made by the State courts as to what legislative intent was, as we ask the Court to do in this case, and in those cases, and applying--after that threshold determination, applying equal protection analysis, found the statutes under a rational basis analysis did not comport with equal protection. We think this is a case where the record will support this Court in finding that the Iowa Supreme Court got it right and that *50 the State and Solicitor General have it wrong under this record.

Thank you.

QUESTION: Thank you, Mr. McCormick.

Mr. Miller--General Miller, you have four--

REBUTTAL ARGUMENT OF THOMAS J. MILLER

ON BEHALF OF THE PETITIONER

MR. MILLER: I would just point out that Minnesota v. Clover Leaf Creamery Company is the--is the case where this Court decided that in--in a case before this Court that comes from a State court, that the Federal process, the Federal analysis applies, and that the total work, the total decisionmaking done by the State court is reviewable here, so much so that in that case they reversed a factual finding in--in the court.

I would emphasize too that--that the Iowa Supreme Court has said that--that the analysis is--is--always is the same between the State provision and--and

the Federal provision, and it's only departed, as a matter of result, only one time, the Bierkamp case, in the 130 years that the two provisions existed at the same time.

With that, I would respond to any questions that you might have or--or conclude by asking you to uphold the constitutionality of this--of this act because there *51 are multiple legitimate State interests developed by rational speculation to support the legislation. Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, General Miller.

The case is submitted.

(Whereupon, at 12:11 p.m., the case in the above-entitled matter was submitted.)

DIGEST

DIGEST CLASSIFICATION TO PETITIONER'S ARGUMENT:

Fitzgerald v. Racing Ass'n of Central IA

92 CONSTITUTIONAL LAW

92XI Equal Protection of Laws

92k230 Licenses and License Taxes

92k230.3 Trade, Business, or Profession

92k230.3(6) k. Food, lodging, and entertainment.

May the State of Iowa, without violating the Equal Protection Clause, tax the revenue from slot machines at racetracks at different rates than the revenue from all casino games, including slot machines, on riverboats? U.S.C.A. Const.Amend. 14.

DIGEST CLASSIFICATION TO PETITIONER'S ARGUMENT:

Fitzgerald v. Racing Ass'n of Central IA

376 THEATERS AND SHOWS

376k3.10 k. Racing.

DIGEST CLASSIFICATION TO RESPONDENT'S ARGUMENT:

Fitzgerald v. Racing Ass'n of Central IA

92 CONSTITUTIONAL LAW

92XI Equal Protection of Laws

92k230 Licenses and License Taxes

92k230.3 Trade, Business, or Profession

92k230.3(6) k. Food, lodging, and entertainment.

Did Iowa's legislature violate the Equal Protection Clause by enacting a 36% tax on slot machine revenues at racetracks, while leaving the tax on revenues of slot machines at riverboats at 20%? U.S.C.A. Const.Amend. 14; I.C.A. § 99F.11.

DIGEST CLASSIFICATION TO RESPONDENT'S ARGUMENT:

Fitzgerald v. Racing Ass'n of Central IA

376 THEATERS AND SHOWS

376k3.30 k. Coin-operated amusement devices.

Briefs and Other Related Documents (Back to Top)

For U.S. Supreme Court Briefs See:

2003 WL 834717 (Pet.Brief), Brief for the Petitioner, (March 3, 2003)

2003 WL 1792344 (Resp.Brief), Brief for the Respondents, (April 2, 2003)

2003 WL 1945276 (Reply.Brief), Reply Brief for the Petitioner, (April 21, 2003)

2003 WL 721721 (Amicus.Brief), Brief for the United States as Amicus Curiae Supporting Petitioner, (February 27, 2003)

2003 WL 834715 (Amicus.Brief), Brief of the City of Bettendorf, Iowa, the

City of Burlington, Iowa, the City of Clinton, Iowa, the City of Davenport, Iowa, the City of Fort Madison, Iowa, the City of Marquette, Iowa, and the City of Sioux City, Iowa as Amici Curiae in Support of Petitioner, (March 3, 2003)

2003 WL 1192687 (Amicus.Brief), Brief Amici Curiae of the States of Missouri, Alabama, Michigan, Minnesota, Mississippi, New Mexico, South Dakota, Tennessee, Vermont, Commonwealth of Puerto Rico in Support of Petitioner, (March 3, 2003)

2003 WL 1792288 (Amicus.Brief), Brief of the City of Dubuque, Iowa, as Amicus Curiae in Support of Respondents, (April 2, 2003)

2003 WL 1792310 (Amicus.Brief), Brief of the Institute for Justice as Amicus Curiae in Support of Respondents, (April 2, 2003)

2003 WL 1792329 (Amicus.Brief), Brief of Polk County, Iowa as Amicus Curiae in Support of Respondents, (April 2, 2003)

U.S.Oral.Arg.,2003.

Fitzgerald v. Racing Ass'n of Central IA

2003 WL 21056002

END OF DOCUMENT